FOUNDATION FOR MEDIA PROFESSIONALS V UNION TERRITORY OF JAMMU & KASHMIR: 2G IS NOT VIABLE DURING THE PANDEMIC

Written By: Aritra Mitra

Aritra Mitra is a 1st Year Student At National Law Univeristy, Odhisa

 

INTRODUCTION

The petition filed by Foundation of media professionals, was primarily regarding the restriction of mobile internet speed in the erstwhile union territory of Jammu and Kashmir by the administration. Along with them there were other parties, namely Soayib Qureshi and Private Schools Association of Jammu and Kashmir,[1] who had filed petitions demanding restoration of 4G internet connection in the union territory, which had been rescinded by the Central government back in August 2019.[2] It portrays the fight of the people of Jammu and Kashmir for life similar to those of any other states of the country against the restrictions that are being placed on their daily lives and rights by government authorities in order to maintain security and peace in the region.

BACKGROUND

Jammu and Kashmir has primarily been a region that was administered by India as a state from 1954 to 2019 until the special status accorded by Article 370 of the Indian Constitution[3] was removed by the Parliament of India and the state was reorganised into two union territories- Ladakh and Jammu and Kashmir from 31 October 2019.[4] Since that date the union territory has seen huge increase of military presence and the longest suspension of the internet services in a democracy, among restriction of several other necessities.

The unreasonable internet shutdown was later challenged in the apex court in the case of Anuradha Bhasin v Union of India[5] in January 2020, wherein the Supreme Court imposed directions stating that restrictions upon internet service in the union territory needs to be done by showing the necessity and the proportionality for the said action, which puts restriction upon the fundamental rights of the people. The apex court further also directed the Union Government to periodically review its internet suspension orders and hoped for the non- permanence of the orders.[6] But after the review and adjustments the government restricted the mobile internet speed to 2G. This was challenged by Foundation of Media professionals in Foundation for Media Professionals v. Union Territory of Jammu and Kashmir,[7] a not-for-profit society fighting for press freedom, in the Supreme Court as being violative of the directions in the Anuradha Bhasin judgement and the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 (hereinafter ‘the Suspension Rules’).

ISSUES DISCUSSED

There were several issues raised in the petition. Whether the restriction of internet services is in violation of the fundamental rights of the people of Jammu and Kashmir and whether it is even justified? Whether there is nexus between rising terrorism and internet restriction? Or whether reducing the internet speed would help in curtailing spread of terror related information?

PETITIONER’S CONTENTION

  1. The argument by the petitioners was based on the fact that during the COVID-19 pandemic, there was complete lockdown in the whole country and the internet restrictions on the residents of Jammu and Kashmir was unreasonable and it impacted their basic rights, including right to health, right to education, right to trade and business and freedom of speech and expression.
  2. The petitioners further submitted the right to access internet gains even more importance due to the underlying pandemic situation in the country. They made their point by submitting that the fulfilment of the basic right to health of the people very much depends on the easy access to speedy internet, which helps in availability of medical information and containment strategies and also smooth distribution of necessary information. The denial of these violates not only people’s fundamental right to information but also is in violation of their fundamental right to health.
  3. It was also contended that the restrictions imposed on the speed of internet affects the right to education of the children of Jammu and Kashmir. Due to the slow internet, they were not able get access to e-learning resources. It is also making it difficult for students preparing for various competitive exams of the country.
  4. It has also been submitted that the Respondent’s actions have been in violation of the directions given by the Hon’ble Supreme Court in the Anuradha Bhasin case[8]. The actions have also violated the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, as there had been no setting up of any review committee by the Respondent.
  5. The blanket ban of internet services also clearly indicates that there had been hardly any application of mind. The Respondent has failed to demonstrate any kind of rational nexus between restriction of internet speed and the security of the nation.
  6. The petitioners have also submitted that since the introduction of the internet services, the terrorist activities have reduced rather than increasing. They pleaded that the Respondents can consider restricting of internet only in problematic areas i.e., areas with the presence of terror activities or they can provide 4G internet in certain regions of the union territory on trial basis.

RESPONDENT’S CONTENTION

The learned Attorney General Mr. K.K. Venugopal, representing the respondent stated that Courts of the country should not be getting themselves into matters of national security, which comes under policy making [referring to Zamora case[9]].

  1. He also submitted that the claims of restriction of fundamental rights need to be examined against the context of security of the nation and it needs to be stated that the security of the nation triumphs against the fundamental rights of the citizens. Moreover, the union territory has been seeing terrorist acts for a long time, and to prevent the spread of terror information, it would not be possible to make 4G internet services completely available in the region.
  2. Learned Solicitor General, Tushar Mehta fervently opposed the petitions and said that the authorities in the union territory have strictly followed the directions passed by the apex court in Anuradha Bhasin case.
  3. The information regarding COVID-19 situation was readily made available on government websites, social media sites and other applications developed by the Respondent, and could have been easily downloaded on the current 2G speed. Moreover, there had been no restriction placed on the MAC binding system for internet service.
  4. Documents and advisories have been accessed by almost 1 lakh health professionals in the Union territory trough the MAC binding system. The authorities have also made effort in broadcasting important information through several radio channels and satellite TV and local cable networks. 1.6 lakh pamphlets, 90000 posters in English, Urdu and Hindi were also distributed to the public.
  5. In case of issues raised regarding right to education of the children of Jammu and Kashmir, lessons have been taught on 16 Doordarshan channels and also on radio channels. The authorities have also taken up distribution and delivery of school textbooks, up to elementary level to students meeting eligibility criteria.
  6. The Solicitor General also mentioned some facts regarding the increasing terror presence in the union territory. 108 terrorist incidents had taken place between 5 August 2019 and 25 April 2020. Basing on these stats, the learned Solicitor General submitted that the underlying situation in Jammu and Kashmir is very dangerous and volatile. Taking note of the situation, the authorities have made the adjustments regarding the application of restriction upon the speed of internet and thus are proportionate and necessary. Thus, the petitions should be dismissed

JUDGEMENT

After hearing arguments from both sides, the bench recognized the need to strike a balance between national security and fundamental rights of the people of Jammu and Kashmir. The Court at first addressed the steps that had been taken by the Union Government in follow-up to the directions given by the apex court in Anuradha Bhasin. The Supreme Court accepted the fact that the government did shift from no internet at all to 2G connection. The Court then listed the number of increasing terror and insurgent activities, provided by the Respondent and on that context held that convenient and smooth access to internet was outweighed by the threat to the security of the nation.

When the Court addressed the proportionality of the restriction of internet services, it held that although the restriction orders were temporary in nature, the respondents were not able to substantiate their action with any reason that such restrictions were necessary for maintaining security. The Court also stated that restrictions should be imposed only when the necessity arises.

The Supreme Court then addressed the failure of the Union Government to stand by the apex court’s directions in Anuradha Bhasin, where each and every order passed under Rule 2(2) of the Telecom Suspension Rules[10] for restriction of internet connection services needed to be placed before the Review Committee. The Court then decided that Review Committee, which was supposed to be formed according to Rule 2(5) of the Suspension Rules[11], would be replaced instead by a Special Committee. The new Committee would consist of Secretary of Ministry of Home Affairs, Secretary of Department of Communications and Chief Secretary of Union Territory of Jammu and Kashmir. This committee would look into the alternatives suggested by the petitioners.

The court also observed that the order restricting internet services was not unconstitutional rather based on the context of terror and insurgent activities increasing in the territory, the Special Committee shall look over the geographical extent and duration of the restriction.

CRITICAL ANALYSIS

The main issue that was raised by the petitioners’ side was that the restrictions imposed upon the internet speed will hamper certain fundamental rights of the citizens in the union territory. In these distressing times when the pandemic has put the whole world in a shutdown, right to health has gained increasing importance. But with the restrictions imposed upon internet speed in Jammu and Kashmir, it is affecting the right to health of the people.

Since the independence of India, Kashmir has been a region causing constant fight between India and Pakistan. In fact, three wars have already been fought between them over Kashmir.[12] Since then, new methods to counter insurgent activities have been taken up by law enforcement agencies, and this includes internet shutdown. But the restrictions imposed since the abrogation of Article 370 of the Constitution have been very strict and unreasonable.[13] Now, when there is country-wide lockdown, access to health information through internet becomes necessary. The Supreme Court here has completely overlooked the aspect of public health and stressed more upon the security of the nation in its judgment.

The Respondent in their argument claimed that several government websites and social media platforms disseminating information and advisories were easily accessible through 2G internet connection. But the apex court also did not take into contention that these sites would invite huge traffic and thus will be nearly impossible to have access to these sites. The Court completely ignored it and relied upon the so-called promises of the Union Government.

This goes onto show that the health of the people of Union territory of Jammu and Kashmir does not even stand a chance when it comes to the question of national security. According to the Court, the health of the people can be compromised, but the security of the nation holds utmost importance for them.

The other issue was with the fundamental right to freedom of speech and expression which was also being violated being violated due to restriction being placed on the internet services. It was argued from the petitioners’ side that the terror activities had increased post the complete ban on internet on 5 August 2020. So, the argument from the respondent stating that internet helps in disseminating terrorist information does not hold. But the Court instead of making the Centre accountable for its unreasonable actions, it weighed people’s rights lower than the security of nation.

The restrictions have also not made life easy for the students of Jammu and Kashmir, and it was starkly different to the students from other parts of the world. It was claimed by the Respondent that students were facing no such problem as education was being disseminated by 16 Doordarshan channels and radio stations. But if seen from the students’ perspective, who are studying in school, for board exams and, national and international competitive exams, the efforts from the government does not suffice and access to e-learning resources becomes necessary. In this age of cut-throat competition, students prefer a personalized touch, in order to better prepare for their respective exams and efforts from the government do not seem enough. The Supreme Court totally ignored the students’ request and believed the government’s efforts to be enough. Just because these children’s place of birth, they should be denied some basic rights and access to certain benefits. This is in complete violation of Article 15 of the Constitution[14].

The next thing which caught the eye from the Supreme Court judgment is the delegation of judicial responsibility by the apex court. The three-judge bench directed the formation of Special Committee instead of the Review Committee, as directed in the Anuradha Bhasin judgment. The new Committee would consist of three Executive officials, so basically the Executive will decide if the Executive has violated the fundamental rights of the people of Jammu and Kashmir.[15] This act of the Judiciary is a complete abdication of its judicial responsibility. Relying on Article 32 of the Indian Constitution, petitioner has the fundamental right to judicial remedy, but then if the apex court of the country decides to delegate its powers to the Executive, against whom the grievance is lodged, then it is totally unacceptable and dreadful for the people of this country, who see the Judiciary as the last hope of justice delivery.

CONLCUSION

In this case Supreme Court had a good opportunity to set the record straight by making the executive accountable for its unreasonable and arbitrary actions, but it did the exact opposite by delegating power to executive officials to review executive actions. Even after the Supreme court directions, Government of Jammu and Kashmir renewed the order for temporary suspension of telecom services on 11 May 2020.[16] This order was renewed for another time, and in the meantime, there had been no mention of the Special Committee, which was supposed to be formed by now. It was only after there had been initiation of contempt proceedings against the particular executive officials of the Special Committee,[17] did the Government pay heed to the constitution of the committee and lifting of internet restrictions on internet on a trial basis[18] by an order dated 16 August 2020.[19] It was recently on 5 February 2021, full-fledged 4G internet connection was finally restored in the Union Territory of Jammu and Kashmir.[20]

While it can be argued that security of the nation is of utmost importance, the government cannot take measures which violate the basic fundamental rights of the citizens. When the nexus between restriction of internet and reduction in terror activities cannot be proved, then reducing internet speed or effectuating a complete internet shutdown does not seem reasonable in the largest democracy. Without looking into other effective measures and continuously sticking with easy approach of internet restriction is either ineffective policy decision or abuse of power. It is hoped the recently restored 4G connection continues and the life of the people of Jammu and Kashmir and terror situation in the region improves, and it is also hoped someday the lives of people of Jammu and Kashmir will be free from executive control.

 

REFERENCES:

[1] Foundation For Media Professionals V. Union Territory Of Jammu And Kashmir & Anr., Global Freedom Of Expression, 2020, https://globalfreedomofexpression.columbia.edu/cases/foundation-for-media-professionals-v-union-territory-of-jammu-and-kashmir-anr/ (last visited February 11, 2021).

[2] Poulomi Ghosh, Better late than never, tweets Omar Abdullah as 4G services restored in J&K, Hindustan Times, (Feb. 5 2021, 8:31 p.m.), https://www.hindustantimes.com/india-news/4g-mobile-internet-services-being-restored-in-entire-jk-101612534549628.html.

[3] India Const. art. 370.

[4] PTI, Jammu Kashmir Article 370: Govt revokes Article 370 from Jammu and Kashmir, bifurcates state into two Union Territories, The Times Of India, (Aug. 5 2019, 05:13 p.m.), https://timesofindia.indiatimes.com/india/article-370-to-be-scrapped-jk-will-ceases-to-be-a-state-2-union-territories-created/articleshow/70531899.cms.

[5] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

[6] The Wire Staff, Kashmir: Indefinite Suspension of Internet Not Permissible, Review Orders in a Week, Says SC, The Wire, (Jan. 10 2020), https://thewire.in/law/supreme-court-kashmir-internet-suspensionjudgment.

[7] Foundation of Media Professionals v. Union Territory of Jammu and Kashmir, [2020] SCC 453.

[8] Anuradha Bhasin v. Union of India, supra note 5.

[9] Part Cargo Ex Steamship Zamora v. High Court of Justice Probate, Division and Admiralty Divisions, (1916) 2 AC 77 (PC).

[10] Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, Rule 2(2).

[11] Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, Rule 2(5).

[12] Ramchandra Guha, India After Gandhi: The History Of World Largest Democracy (Harper Collins 2007).

[13] Hindustan Times Correspondent, 39 days after lockdown, restrictions lifted from Jammu and Kashmir, Hindustan Times, (Sep. 13 2020), https://www.hindustantimes.com/india-news/39-days-after-lockdown-restrictions-lifted-from-entire-jammu-and-kashmir/story-OC8ik4VC68z6jcYMbqIj1L.html.

[14] India Const. art. 15.

[15] Gautam Bhatia, The Supreme Court’s 4G Internet Order: Evasion by Abnegation, Indian Constitutional Law And Philosophy, (Jun. 6 2020),  https://indconlawphil.wordpress.com/2020/05/11/the-supreme-courts-4g-internet-order-evasion-by-abnegation/.

[16] Home Department, Government of Jammu and Kashmir, Temporary Suspension of Telecom Services Order, Home -48 (TSTS) of 2020 (May 27, 2020).

[17] Live Law News Network, Foundation Of Media Professionals Files Contempt Petition In SC Over Non Constitution Of Special Committee To Review J&K Internet Curbs, Live Law, (Jun 9 2020), https://www.livelaw.in/top-stories/foundation-of-media-professionals-contempt-petition-over-non-constitution-ofspecial-committee-jk-internet-curbs-158053?infinitescroll=1.

[18] Trisha Jalan, Internet speeds will continue to be restricted to 2G in Jammu & Kashmir, Medianama (June 18, 2020), https://www.medianama.com/2020/06/223-2g-restriction-jammu-and-kashmir-continues/.

[19] Home Department, Government of Jammu and Kashmir, Temporary Suspension of Telecom Services Order, Home – 91 (TSTS) of 2020 (Aug 16, 2020).

[20] Anuradha Bhasin Jamwal, 4G Is Back in J&K After 18 Months, but it Can’t Compensate for What We Lost, The Wire, (February 7 2021), https://thewire.in/rights/jammu-and-kashmir-4g-internet-costs.

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