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On August 5, 2019, strict security lockdown and complete communication blackout were imposed in J&K to prevent protests against the revocation of its special status via consigning to scrap heap Article 370 and Article 35A of the Constitution of India. The scrapping was followed by the introduction of the Jammu and Kashmir Reorganisation Act, 2019 which restructured and bifurcated the State of Jammu and Kashmir into two separate Union Territories of Jammu and Kashmir, and Ladakh. Thousands of troops were deployed in the region to avoid the emergence of any law and order situation.
The strictest possible restrictions were imposed as a preventive measure both on movement and communication to prevent any unlawful activities from occurring and also to prevent fabricated false news to spread tensions on social media. Upwards of 4,000 individuals had been detained and among them were more than 200 Political pioneers including two previous Chief Ministers of Jammu and Kashmir. Restrictions on movement under section 144 of Cr.P.C were imposed and the communication blockade included a ban imposed on all sorts of internet services, cellular networks, and satellite internet providers.
The Centre’s move evoked a strong response from several quarters and a batch of petitions were filed before the Supreme Court to remove the communication blockades in the region. The communications blackout and the security crackdown in the Union Territory of Jammu & Kashmir drew serious international criticism. Many believed the communication blockade was a violation of the right to freedom of speech guaranteed by the Constitution of India. The restrictions were eased in phases starting from restoring landline telephones in mid-September to the resumption of post-paid cellular connections from October 14, 2019, and ultimately the restoration of mobile internet on January 25, 2020, after more than 170 days of internet ban. However, only 301 “whitelisted” websites were accessible.
The government ordered the service providers in Kashmir to update a firewall and maintain a record of all people and devices using the internet. The installation of a firewall would prevent people from accessing social media sites allowing the government to counteract the circulation of inflammatory material and propagation of terror activities. In March, the ban on social media was lifted but however Jammu & Kashmir has been restricted to the use of low-speed 2G internet. Many petitions are filed in Supreme Court to invoke the governments’ restoration of 4G internet as the state-owned broadband internet is available to just 20,000 subscribers which accounts for just 1 % of the population in Kashmir and the rest rely on their mobile internets.
Though the communication outage did not only affect the social life the business sector, the education sector, employment avenues, and journalism were also victims of the Indian government’s move but they were imposed in view of the security situation prevailing. The details and reports submitted by the Police authorities to the Government of J&K and Home Ministry implied the absolute necessity to impose such restrictions in the interest of the sovereignty and integrity of India. These restrictions are important for the National Security and maintaining public order in the Union Territory of J&K, and have been exercised under the powers conferred by the sub-section (2) of section 5 of the Indian Telegraph Act, 1885 and sub-rule (1) of Rule of Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
Petitions filed for the restoration of 4G in Jammu and Kashmir:
The Jammu and Kashmir administration limited the web network in the Union Territory to 2G rather than 4G through various government orders dated 18th Jan 2020, 24th Jan 2020, 26th Jan 2020, and 3rd April 2020. Against the restrictions imposed on the speed of the Internet connectivity, petitions in the public interest were filed before the Supreme Court challenging these orders, and notice was issued to the J&K administration during the hearing on April 9th. However, the Jammu and Kashmir Home Department continued issuing fresh orders extending the existing restrictions on internet speed on the grounds that the restriction of internet speed to 2G has caused a reduction in the incidents of misuse of social media for circulation of fake news and provocative content.
The following petitions have been filed before the Supreme Court and the High Court seeking restoration of 4G internet in the State:
- By foundation for media professionals:
On 9 April, a body called Foundation for Media Professionals filed a plea documenting a request in the Supreme Court, through its president and journalist Paranjoy Guna Thakurta and represented by advocate Shadan Farasat. The plea filed specifically challenged the Internet restricting order issued by the government on March 26 and sought the court’s bearing to re-establish 4G internet service contending such limitation abused Articles 14, 19, 21, and 21A of the Constitution of India. A three-judge bench of Supreme Court comprising of Justice NV Ramana, Justice R Subhash Reddy and Justice BR Gavai, had heard the plea and then issued a notice to the government asking for its response.
Making a reference to the government’s 26 March order which repeated the decision to restrict the speed, the plea mentioned that such a limitation in regard to web speed adequately sums to a focused-move back of rights of the residents of Jammu & Kashmir. Petitioners have urged the Court that the administration is under a commitment to guarantee access to a digital framework during this health crisis and make the Right to Health of residents, a viable reality. Due to limiting internet speed the doctors, patients, and the general public are unable to access the latest information, guidelines, advisories, daily updates, and restrictions on COVID-19 affirming that the 2G web speed is encroaching upon the Right to Healthcare of residents and leaving specialists without access to the innovation expected to battle COVID-19. Residents are failing to get benefitted and cannot access potentially life-saving information from initiatives like the Ministry of Health’s COVID19 dashboard and MyGovIndia’s WhatsApp bot which reacts to questions and counters the COVID myths with content, infographics, videos, and recordings. Further, it has also expressed that no entrance to 4G makes it incomprehensible for the residents to follow the government’s work from home approach.
- By Private Schools Association, Jammu and Kashmir:
Private Schools Association, Jammu, and Kashmir filed a Public Interest Litigation in the Supreme Court of India. The petition filed through advocates Soayib Qureshi and Charu Ambwani, in an association of more than 2,200 schools across Jammu and Kashmir was filed on the ground that the order of restriction of 4G data in the Union Territory is an infringement of the right to education guaranteed by the Constitution.
According to the petition, data connectivity at the speed of 2G and not 4G, is not sufficient to circulate information, and restrictions on the availability of good internet speed is unreasonable, unrequired, totally unjustified, and without any material basis. Individuals need to rely upon virtual classes but because of the lockdown the education sector in the state has only been pushed to the dark ages by such a restriction of Government.
The petitioner has additionally settled on the note of the decision of the Supreme Court in Anuradha Bhasin vs. Union of India where the Right to the internet was held to be an integral part of the fundamental rights. The right to freedom of speech and expression was held to be a part of Article 19(1) under the Constitution, and any expression or articulation through the internet also comes under Article 19(1) of Constitution and any order for suspension of such the internet should be subject to judicial review. Thus, all the government orders imposing the internet speed restriction in the valley are in violation of this judgment as none of the orders imposing internet speed restriction was placed before a review committee and that none of the review committee reports were made public.
• Petition before High Court of Jammu and Kashmir:
On 10th April, the Jammu and Kashmir High Court heard a writ petition furthermore taking suo moto cognizance of issues arising due to the current Pandemic and the lack of efficient internet facility in Jammu and Kashmir. The Amicus Curiae submitted before the Court was on account of the students in the Union Territories being unable to access the educational courses due to the non-availability of the 4G services, The Court dealt with the following issues directing the administration to file a status report but however the High Court on April 16th noted that it has not received any status report yet. The High Court has coordinated the Secretary, Home Department of the UTs of Jammu and Kashmir and Ladakh to document a status report before the next date of hearing.
Governments response & future outcome:
The J&K government’s submission to the court was filed by Shashi Juneja, additional standing counsel, on behalf of the principal secretary, home department. In its reply to the petitions seeking faster internet connectivity, the Jammu and Kashmir administration submitted before the Supreme Court that the internet as an enabler of rights and not a fundamental right in itself. It has also responded to the petition seeking restoration of high-speed internet for accessing information regarding Covid-19 by the health workers and the public in general, by saying that such apprehensions are misconceived as all necessary documents and advisories issued by the government are available on various websites and platforms and have already been accessed by over 100,000 professionals in various health facilities in J&K.
With the present 2G speed of the internet it is difficult for one to create, access, utilize, share information and knowledge, or upload/download a heavy data file which will lead to failure of the evil designs and plans of the terrorists. The administration submitted that rights under Article 19(1) (a) and (g) of the Constitution cannot be said to be curtailed by a reduction in the speed of the internet and that a very reasonable quantum of restrictions has been imposed by to protect the sovereignty, integrity and security of the country. The J&K administration further argued that faster internet speed would give the enemy information even about the “troop movements.” Administration has further said that the issue of internet speed restoration should be left to decide to those tasked with “protecting national security”.
The Supreme Court, after hearing both sides, on 11th May, 2020 has denied the passing of an order for the restoration of high-speed mobile internet and has ordered the central government to constitute a special committee for probing affairs regarding high-speed internet in J&K. The court has recognized that the Union Territory has plunged into a crisis but simultaneously considers national security as of utmost importance. The high-speed internet will be resumed when the committee is satisfied that such can be done.
Government through its various reports and press briefings have clearly stated that not more than 2-3% population of the valley sympathizes with separatists and may utilize the internet facility to spread rumours and misinformation campaigns against India and its handling of the law and order situation in J&K. So, the rest of the 97 % of the population is unduly being penalized and kept away from this facility with inadequate bandwidth in the present digital age.
However, it is in place to mention that the citizens of a State are under an obligation to comply with the laws, rules, and regulations which are made for the betterment and in the larger interest of the nation. As presently we are seeing that during this pandemic unprecedented measures are being taken by the government and the nation is willingly and voluntarily obeying these restrictions so that the entire nation comprising of more than 1.3 billion people may survive this pandemic. In the same manner the people of Jammu and Kashmir have to bear with the restrictions in data communication as it serves the larger sovereign interests of the nation.
Author: Iffla Firdous from Department of Law, University of Kashmir, Hazratbal, Srinagar.
Editor: Akshat Mehta from Institute of Law, Nirma University.