General

Restoration of 4G Services in Jammu & Kashmir

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This Blog is written by Kavya Jithendran from The National University of Advanced Legal Studies, Kochi. Edited by Saumya Tripathi.

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Drawing a line between individual rights and the interest of the State has always been difficult. The Union territory of Jammu and Kashmir has been under lockdown since 5 August 2019 following revocation of the special status of Jammu and Kashmir facilitated by scrapping of the Article 370 of the Constitution of India, Article 35A of the Constitution of India and the introduction of Jammu and Kashmir Reorganisation Act, 2019 by the Union government. Even amidst nation-wide protest and allegations of human right violations, the Union government continues to keep communication and public life in leash over national security concerns as lockdown in Kashmir crossed 300 days.

INTRODUCTION: FOUNDATIONS FOR MEDIA PROFESSIONALS V. UNION TERRITORY OF JAMMU AND KASHMIR, [(2020) SCC ONLINE SC 453].

A recent development in this situation was the writ petition filed by Foundation of Media Professionals, a non-profit organisation of journalists with an aim to uphold media freedom, for the restoration of 4G services in Kashmir. In the petition before the Supreme Court of India, the petitioners pointed out that the mobile internet speed has been restricted to 2G and requested the quashing of the orders restricting internet to bring back 4G mobile internet services in the Union Territory of Jammu and Kashmir.

The petitioners premised their arguments on the fact that the restrictions imposed on the residents of the entire Union Territory of Jammu and Kashmir in the prevailing scenario where the nation is struggling against a pandemic, impacts their right to health, right to education, right to business and right to freedom of speech and expression. The Court took note of the submission that internet is of utmost importance in the prevailing circumstance to access medical services and information on containment strategies and to access to E-learning services such as online lectures and other resources, additionally putting students preparing for national/competitive exams at a disadvantage.

Attorney General appearing for the State submitted the State’s concern over national security emphasizing the pertaining insurgency in the region. The government argued against the restoration of full internet as it may result in the misuse of such services the spreading of fake news to incite violence as Kashmir continues to be a region gripped by a prolonged separatist insurgency. The State utilized the list of over 108 terrorist incidents reported to have taken place in the recent since 5^th August 2019 till 25^th April 2020 to support this argument. The respondents also rebutted the claims by the petitioners that the State has failed to provide any rational nexus between the restriction of the internet speed and national security directions and that the State has overlooked the directions laid down by this Court in Anuradha Bhasin as well as the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 have been ignored by the State. The State emphasized on the measures taken by the government to prevent any disruption to access to education and pointed out the fact that information regarding COVID-19 available on various social media platforms, government websites, applications developed by the government for disseminating information can be easily downloaded over the 2G internet and that no restrictions exist over fixed line internet.

The court after deliberations ordered for the appointment of a special committee to address the issues raised and examine the contentions placed by the petitioners as well as the respondents. The Committee is to examine the appropriateness of the alternatives suggested by the petitioners and advise the State regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet on a trial basis over certain geographical areas.

The Court observed that the submission of the petitioners ‘in normal circumstances, merit consideration’ but decided that the matter requires further contemplation after learning about the efforts by outside forces to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored.

SIGNIFICANCE OF THIS DEVELOPMENT

It is important to note that this decision was preceded by the Anuradha Bhasin judgement wherein the Court had concluded that ‘restrictions (on communication systems in Jammu & Kashmir) cannot be permanent’. But the Court continued to disassociate itself from the matter and was reluctant to order the full restoration of services. However the constitution of the Special Committee is of significance.

The direction for formation of a Special Committee headed by the Secretary, Ministry of Home Affairs (Home Secretary), Government of India was made because the Court felt that the Review Committee which consists of only State level officers may not able to satisfactorily address all the issues. The Court also instructed that other members of the Committee be the Secretary, Ministry of Home Affairs (Home Secretary), Government of India, the Secretary, Department of Communications, Ministry of Communications, Government of India and the Chief Secretary, Union Territory of Jammu and Kashmir.

While the decision fails to provide immediate relief to the residents of Jammu & Kashmir, this judgment acknowledges that the matter at stake is the fundamental rights of citizens and hence this decision like the previous decision is a little step forward in making internet shutdowns in India more transparent, proportional and accountable. The administration will be compelled to comply with the guidelines under Anuradha Bhasin and possibly the restriction will be limited only to areas where there is an actual security threat, after the consideration by the Committee.

A mere observation that ‘it might be desirable and convenient to have better internet in the present circumstance’ in a country which has the most number of internet shutdowns in the world though not enough, the Court order and its limited reasoning is something to be built upon in future challenges to internet shutdowns in India.

IMPACT

The decision of the Supreme Court and the direction for the constitution of the Special Committee was made on 11^th May 2020. An order directing Internet service providers to continue a blanket restriction on mobile internet speed to 2G for the whole of Jammu & Kashmir was released by the authorities on the same evening. These restrictions were further extended on 27^th May 2020. The authorities have not notified the constitution of the Special Committee and thus no information is available in the public domain about the formation of the Special Committee. There is no public record or statement regarding any meetings or orders passed by the committee which was supposed to examine the necessity of the continuation of the restrictions in the Union Territory.

This has resulted in a subsequent plea by the original petitioners (Foundation of Media Professionals) for their “willful disobedience” of the apex court direction to establish a Special Committee to determine the necessity of continuing “blanket restrictions” on 4G Internet access in Jammu & Kashmir amid the COVID-19 pandemic. This contempt petition makes Union Home Secretary Ajay Kumar Bhalla and Chief Secretary of Jammu and Kashmir Union Territory B.V.R. Subrahmanyam parties and alleges that such ‘lax attitude, especially during a health pandemic and humanitarian crisis, violates both the letter and the spirit of this court’s judgment’.

This petition states that the petitioner had sent a representation to the special committee regarding the May 27 order and received no acknowledgement of its receipt. An application seeking directions to the authorities to notify the constitution of the special committee within three working days and an interim direction to the to the authority to restore 4G mobile internet services in Jammu & Kashmir, pending disposal of the plea and also the decision by the special committee is filed along with the contempt plea.

PROVISIONS OF THE LEGISLATURE

India has a dubious record of having the most number of internet shutdowns across the globe with around 180 partial or complete internet shutdowns in the last seven years solely in the Union territory of Jammu & Kashmir. Shutting down of internet, in an era of digitalization, is completely contrary to democratic principles. The information blackout created by such a shutdown is violative of fundamental right to freedom of speech and expression [Article 19(1)(a)] guaranteed by the Indian Constitution. But again these rights can be subjected to reasonable restrictions n the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

The legislations concerning the legal status of denial of telecommunication and internet shutdown are namely Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules issued in 2017 under the Telegraph Act, 1885 and The Information Technology (IT) Act. The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules specify the procedure for issuing directions to suspend the telecom services and provides for creation of a Review Committee to observe whether the directions issued are in accordance with the provisions of the Act. The Rules also state that any such order issued due to public emergency or for public safety should contain reasons for such direction.

The government policy adopted in Jammu & Kashmir initially included ‘whitelisting’ a number of websites which is then exclusively made available to the region via Internet Service Providers. Section 69A of the IT Act 2000 empowers the government to deny public access to websites hosting illegal content after following proper procedure, essentially enabling the government to selectively blacklist websites which contain illegal content. However, only allowing access to numerous websites while totally disregarding other websites is against procedure and arbitrary in nature. This measure was relaxed at the start of March 2020 by an order allowing access to all websites, but services were still limited to 2G mobile internet for postpaid and verified prepaid customers.

CASE LAW(S)

Freedom of press is an integral element of freedom of speech and expression and this has been affirmed by a multitude of apex Court decisions like Indian Express v. Union of India, [(1985) 1 SCC 641]. And there are another set of decisions whereby the Courts upheld the importance of freedom of speech and expression and hence adopted careful balancing of rights. The Supreme Court decision in Shreya Singhal v. Union of India, [(2013) 12 SCC 73] which invalidated Section 66A of IT Act, is one such case. The most important case law in this context is the Supreme Court decision in Anuradha Bhasin v. Union of India, [(2020) SCC OnLine SC 25],. In this case, the petitioner Anuradha Bhasin- the executive editor of the Kashmir Times Srinagar Edition- challenged the legality of internet shutdown and movement restrictions imposed in Jammu & Kashmir on August 2019 under Article 32 of the Constitution. The petitioner contended that the restrictions imposed are highly unreasonable and disproportionate and hence a violation of constitutional guarantees. The Court took into discussion various questions including whether right to Internet form part of Right to Freedom of Speech & Expression under Article 19(1)(a) and whether the proportionality test held ground to determine if the restriction imposed was necessary.

The Court held that Right to internet forms part of freedom of speech and expression under Article 19(1)(a) and freedom to practice any profession, carry a business, trade or occupation under Article 19(1)(g). But since right to internet is part of Article 19, it is not absolute and may be denied on the grounds mentioned under Article 19(2) & (6). In this judgment, the Court also held that the government must proactively publish all orders issued under Section 144, Code of Criminal Procedure, 1973 and the Temporary Telecom Suspension Rules, 2017, elaborating that the government cannot cite administrative inconvenience to refuse publication of orders. Even though this decision provided a ray of hope by reiterating that prohibiting internet access requires “unavoidable circumstances”, the Court refused to decide the validity of the shutdown orders and passed on this job to the review committee.

ANALYSIS

The Constitutional Order No. 272 passed by the President of India applying all provisions of the Constitution of India to Jammu and Kashmir and stripped it from special status enjoyed since 1954 and the subsequent order restricting the movement and public gathering, apprehending breach of peace and tranquility under Section 144 of CrPC lead to abrupt changes to the public of the region.

The measures adopted by the government regarding internet services were widely criticized for being vague and for lack of accountability. When the complete internet blackout was lifted, access was given only to 329 websites and later to 1674 websites. If the Government concern was about misinformation and incitement of violence, it may selectively blacklist websites which contain illegal content. The choice to impose a generic ban on all websites and further selectively white list certain websites gave rose to severe criticisms and allegations of ulterior motive.

The judicial decisions pertaining to the scenario displays the difficulty in balancing fundamental rights with the interest of the State. The key notion remains the proportionality between what the State aims to achieve through imposition of restriction and the magnitude of loss suffered by individuals.

It is also difficult not to notice that the judiciary rather than adopting a pro active approach at a presented opportunity is laid back leaving the ultimate decision to the executive. Despite having the benefit of the Anuradha Bhasin guidelines, the Court chose not apply them in Foundation of Media Professionals v. Union Territory of J&K and instead entrusted a special committee to determine to question of the continuation of the internet restrictions.

Additionally, in spite of explicit order in Anuradha Bhasin case the Government of Jammu & Kashmir has not published past orders issued between 05 August 2019 to 14 January 2020 on its website or any publically accessible forum. Similar is the outcome of Court’s direction regarding constitution of Special Committee.

CONCLUSION

Internet is the most powerful tool for social change today and is an indispensable element of quality life and India currently has the most number of internet shutdowns in the world. One cannot close the eyes to such unhealthy developments in the world’s largest democracy and these decisions though in the right paths are extremely small steps. Nonetheless, the circumstances in Union Territory of Jammu & Kashmir with a history of militancy are peculiar and require careful forethought and precautions. Kashmir was already the most militarized region in the world before august 2019. In August by adding more than 40,000 security personnel to the existing number the Central government brought that number to around 3 lakh.

As the Anuradha Bhasin judgment pointed out the internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies. But this does not invalidate the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens.

Hence, it is important that the government finds a solution to alleviate the security concerns without disrupting public life like limiting the internet restrictions only to problematic areas. If not, the judiciary needs to step in and draw the line and guard the rights of citizens against power abuse by the authorities.