Editorial Notes

[Editorial Notes] Apex court’s verdict on Kashmir Internet shutdown

The right to the internet is a fundamental right under Article 19 of the Constitution, but the Supreme Court in its recent verdict did not allow for the restoration of 4G services in UT J&K.
By IASToppers
May 22, 2020

Contents:

  • Introduction
  • Government’s stand
  • Arguments of Petitioners
  • Anuradha Bhasin and Guidelines for Internet Shutdown
  • The current order
  • Road Ahead
  • Conclusion

Apex court’s verdict on Kashmir Internet shutdown

For IASToppers’ Editorial Simplified Archive, click here

Introduction:

The Supreme Court recently pronounced its order in the Foundation of Media Professionals v. Union Territory of J&K (for the restoration of 4G services in Jammu and Kashmir). The Court did not allow for the restoration of services – nor did it engage with the arguments of the parties in its order.

Instead, the Court asked a special committee headed by the Union Home Secretary and comprising the Secretary of Department of Communications, Government of India and the Chief Secretary of the UT J&K to examine the prevailing circumstances in the UT and determine whether the restrictions on internet services should continue.

Government’s stand:

  • The internet shutdown in the entire UT J&K was imposed under the pretext of security concerns after the abrogation of Article 370 on 5 August 2019.
  • The broadband internet services were restored in Kashmir in March 2020 but the internet speed is restricted to 2G only.
  • The administration in the territory said it feared the internet could be used to propagate terrorism and incite locals.
  • According to the government because of the prevailing security situation in J&K and the use of the internet by insurgents and terrorists to spread violence, it is not possible to provide 4G services in the region at this moment.
  • It also contended that there is no restriction over broadband and fixed line internet, and that the government is taking alternate measures to provide information relating to Covid-19 and for the education of students in the region.

Arguments of Petitioners:

  • The current petition by Foundation of Media Professionals asked for the restoration of 4G services in J&K with immediate effect.
  • The shutdown challenges the right to freedom of speech and expression under Article 19(1)(a) of the Constitution, and is also a violation of Articles 19(1)(g), 21 and 21A of the Constitution.
  • The restriction on 4G internet in the times of Covid-19 restricts the right to business, education, health, and speech and expression of the people of J&K.
  • The restriction makes it impossible for individuals in J&K to access information, government advisories, and orders relating to Covid-19.
  • This violates the right to healthcare of the people, the right to access to justice of people in J&K is also restricted; and so is a violation of Article 21.
  • The restrictions prevent a large number of people in J&K from complying with work from home orders of the government and violates the right to trade under Article 19(1)(g) and right to livelihood under Article 21.
  • Further the order by the J&K administration does not adhere to the requirements laid down by the Supreme Court in the recent judgment in Anuradha Bhasin v. Union of India.

Anuradha Bhasin guidelines for Internet Shutdown:

  • In the Anuradha Bhasin case, the Court laid down various guidelines/ safeguards which the government needs to follow before ordering an internet shutdown.
  • It held that the shutdown order should specify the exact duration of a shutdown and it cannot be indefinite.
  • It directed the Review Committee formed under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, to review the shutdown orders every seven days.
  • The Court stated that these orders must pass the test of proportionality.
  • It held that the government must identify the exact stage of public emergency before shutting down the internet, since that will assist the committee in determining the proportionality of the measure.
  • However, despite laying down all the principles, the Court did not decide the validity of the shutdown orders and passed on this job to the review committee.

The Current Order:

1. Acknowledging public emergency in Kashmir:

  • The Court starts by stating that fundamental rights need to be balanced with national security concerns.
  • It points out the importance of national security concerns prevailing in J&K and their role while deciding on the restrictions.
  • In Bhasin the Court already acknowledged that modern terrorism relies heavily on the internet, noting that the internet is being used to support proxy wars and to raise money, recruit and spread of propaganda.
  • In light of this, a clear public emergency situation exists in J&K.

2. Divergence from Anuradha Bhasin case:

  • However, despite having the benefit of the Auradha Bhasin guidelines, the Court did not apply them.
  • The Court found that the order prohibiting 4G internet services does not specify the reasons for the restriction through entire regions of J&K.
  • As per Anuradha Bhasin case, the order for limiting services should only be for areas where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier.
  • The Court states that A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration.”
  • However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored.”
  • The order does not explain how this is a factor for the Court to refuse to apply its own judgment and the legal principles laid therein is not explained.
  • While the Court found that a prohibition of 4G Internet in J&K was potentially disproportionate, it did not exercise its power to issue writ under Article 32 as a remedy for the violation of fundamental right in the UT.

Road Ahead:

  • The Court has directed the special committee to look at the material presented by petitioners, examine the alternatives, including the petitioners suggestions of placing restrictions only in areas where there is a serious public emergency situation and allowing 3G/4G internet in certain areas on a trial basis.
  • While it does not provide immediate relief to the residents of J&K, this judgment like Bhasin is a little step forward in making internet shutdowns in India more transparent, proportional and accountable.

Conclusion:

India has become a country which has the most number of internet shutdowns in the world. Since the right to the internet is a fundamental right under Article 19 of the Constitution, these steps by the highest Court of the country may not be enough. The fate of a large part of India’s population should not be left out in the hands of the bureaucrats, instead the judiciary must use its extraordinary power to make exemplar decisions on the basis of proportionality.

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