No order on 4G restoration in J&K: SC

MHA Secy led committee to examine issues

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The Supreme Court, while not passing any orders for restoration of 4G in Jammu and Kashmir, has instead set up a Committee to review the situation and consider the alternatives suggested by the petitioners. This committee is to be led by the Secretary of Ministry of Home Affairs.

Thus, the hope for restoration of 4G in J&K is effectively lost given how the administrative committee comprises the same officers who have been aggressively implementing 2G internet restrictions there. Basically, the same officers who are pushing for 2G restrictions will now review if 4G can be restored in the UT; the irony is not lost on anyone.

During the last hearing of the case, the Supreme Court bench comprising Justices NV Ramana, R Subhash Reddy and BR Gavai seemed to be concerned with the situation in J&K where internet speed has been limited 2G which is making matter worse for the Union Territory which has been under lockdown since August 2019. Some very pertinent issues were raised by the counsels representing the petitioners, Foundation for Media Professionals as well as Private Schools Associations of J&K and Soayib Qureshi. These were separate petitions with the same cause of action and hence a common order was passed by the bench. The petitions had challenged the government’s decision to restrict the internet speed to 2G as being violative of Articles 14 (right to equality), 19 (freedom of speech), 21 (right to life) and 21A (right to education) of the Indian Constitution.

Brief background

After the abrogation of Article 370 and reorganisation of Jammu and Kashmir into a Union Territory the internet was completely suspended, towards the end of January this year, 2G services were restored there albeit with some restrictions after a Supreme Court order finding internet shutdown illegal. The court had observed that indefinite suspension is not permissible and restrictions on internet have to follow the principle of proportionality under Article 19(2), which speaks about reasonable restrictions on fundamental rights.

In the beginning of March, the Jammu and Kashmir administration decided to lift the ban put on access to social media sites but on 2G speed internet.

Around April 21, the Supreme Court asked the Centre as well the J&K administration to file a counter affidavit to spell out reasons why 4G internet should not be restored in the valley. Until then the defense used by the government was that doing so would affect national security. The J&K administration had told the apex court, in its counter affidavit to the petition, that right to access the internet is not a fundamental right and that the state can curtail freedom of speech and right to trade through internet.

Sabrang India had explored whether right to internet was a fundamental right in India and what kind of limitations does it have in its application. The same may be read here.

Arguments in last hearing

In the last hearing on May 4, the court had reserved it orders after it heard submissions and contentions from all interested parties.

Foundation of Media professionals had argued that doctors needed high speed internet for accessing latest updates on COVID19 as also to enable online consultation with patients. Their counsel also submitted that the State had failed to show any nexus between 4G internet and terrorism. He in fact submitted that most cases of terrorism happened in the region which has not internet at all.

Private Schools Association of J&K, through its counsel Salman Khurshid, stated that low internet speeds were affecting online education and students were being deprived of education and were not enjoying right to education at par with students in rest of India.

Advocate Soayib Qureshi, who appeared in person had submitted that the restrictions in internet speed violated principles of reasonableness and proportionality.

The defense of the state was that it was easy for the State to keep track on who is giving information and disseminating terrorist propaganda with fixed line internet. The Attorney General had also said that this was a policy decision and that the court should not interfere.

The Solicitor General, Tushar Mehta for J&K submitted that There is no information of anyone dying because of lack of internet access in the UT.

Finally, the petitioners asked the court to at least allow 4G internet on trial basis. Further it was also suggested that problematic sites be blocked instead of completely banning 4G.

Final Order

While the complete order is not out yet, the operative part of the order, as reported by LiveLaw, reads as follows:

“This court has to ensure national security and human right s are balanced. We do recognize that UT has plunged into crisis. At the same time court is cognizant to the concerned related to ongoing pandemic and hardships.

It may be noted that in the earlier judgement of Anuradha Bhasin, this Court had directed that, under the usual course, every order passed under Rule 2(2) of the Telecom Suspension Rules restricting the internet is to be placed before a Review Committee which provides for adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored.”

It is pertinent to note here, that in one of its submissions, petitioner, Foundation for Media Professionals had pointed that no “periodic review” had been carried out in J&K as per the Anuradha Bhasin judgement.

Further, the bench comprised a Special Committee comprising of both state level as well as Union level officers (Secretaries), led by the MHA Secretary, in order to determine the necessity of continuation of restrictions in the UT. The Committee is tasked with examining the alternatives suggested by petitioners and advise the State on the same.

No timeline has been assigned to the Committee for completing this important task, at least in the operative part of the order.

The story will be updated when the complete order is available.

The complete order can be read here. 



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