Refraining from passing positive directions for the restoration of 4G speed internet services in Jammu and Kashmir, the Supreme Court on Monday directed the Centre to constitute a "Special Committee" to examine the issues raised by the petitioners.
The Committee must be headed by the Secretary of the Union Ministry of Home Affairs.
The Court said that a balance has to be struck between the right to access internet during a pandemic and also the security concerns of the State.
"While it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown. However, the fact that outside forces are trying 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", observed the bench.
The operative portion of the order stated as follows :
"It may be noted that in the earlier judgment 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.
However, we are of the view that since the issues involved affect the State, and the nation, the Review Committee which consists of only State level officers, may not be in a position to satisfactorily address all the issues raised. We, therefore, find it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir:
a. The Secretary, Ministry of Home Affairs (Home Secretary), Government of India.
b. The Secretary, Department of Communications, Ministry of Communications, Government of India.
c. The Chief Secretary, Union Territory of Jammu and Kashmir.
The aforesaid Special Committee shall be headed by the Secretary, Ministry of Home Affairs (Home Secretary), Government of India. Currently, only 2G services are functional in the Union Territory.
The Special Committee is directed to examine the contentions of, and the material placed herein by, the Petitioners as well as the Respondents. The aforesaid Committee must also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise the Respondent No. 1 regarding the same, in terms of our earlier directions.
The writ petitions are disposed of in the afore-stated terms".
A bench comprising Justices N V Ramana, R Subhash Reddy and B R Gavai had reserved orders on May 4 on the petitions filed by Foundation of Media Professionals, Private Schools Association of J&K and Soayib Qureshi.
The petitioners contended that speed restriction on internet in the region amidst the COVID-19 pandemic resulted in disproportionate infringement of the right to access internet. As a result of the speed curbs, doctors were finding it difficult to render online medical services. Online education has also been disrupted due to the speed limits, the petitioners added.
Lack of 4G net made right to internet illusory and dismantled the fundamental rights to access health services and education, they contended.
Better Internet Desirable During Pandemic Lockdown; But Can't Ignore Terrorism Concerns : SC In J&K Pleas For 4G [Read Order]
Senior Advocate Huzefa Ahmadi, appearing for Foundation of Media Professionals, submitted that doctors are finding it difficult to function effectively in the absence of 4G speed.
He highlighted that there are 701 cases of COVID-19 & 8 deaths in the region. When the petition was filed there were 33 cases, and the infections have escalated. Doctors need high speed net for accessing latest updates on COVID-19, and for online consultation with patients.
When the bench posed a query regarding the need to account for security concerns raised by the State, Ahmadi replied that the during the times of pandemic, the fundamental right to access health care should also be given importance.
Seeking to rebut the government's claims that high speed net will lead to terrorism, Ahmadi submitted that most cases of terrorism happened in the region when there was no internet at all. The State has not shown any nexus between 4G and terrorism.
Senior Advocate Salman Kurshid, appearing for Private Schools Association of J&K, submitted that the speed restrictions have affected online education.
"Private schools are under government directions to provide education via Video-conferencing. We have obligation under Right to Education Act to provide education", he submitted.
The Court also heard Advocate Soayib Qureshi, who appeared as party-in-person and submitted that the speed restrictions violated the principles of reasonableness and proportionality discussed by the SC in the Anuradha Bhasin case.
The Centre and the J&K administration justified the restrictions by citing the threat of terrorism.
"There are good reasons why only fixed line internet was permitted (in J&K). With that, we can keep check on who is giving information and disseminating terrorist propaganda.", Attorney General, K K Venugopal, said.
AG stressed that it was a "policy decision" of the Government, in which the Court should not interfere.
Solicitor General Tushar Mehta, appearing for J&K administration, submitted that health services are working in J&K even with the speed restrictions.
The SG also said that there was no information of anyone dying of COVID-19 because of lack of internet access.
"There are other areas in the country where there is either no internet or only 2G is available. There is no information of someone dying of COVID19 because they didn't have internet access!", the SG submitted.
The SG added that while landlines can be traced, mobile phones could be easily thrown away after being used for "anti-national" activities.
In rejoinder, Senior Advocate Ahmadi submitted that the J&K administration has not carried out "periodic review" of the internet restrictions as mandated by the Anuradha Bhasin judgment.
"I have repeatedly pointed out why 2G network is not enough for an interactive class. It is a matter of elementary knowledge that 2G can't be used for video", Ahmadi submitted in rejoinder.
"Practically, one can't download because the application "gets timed out" on a 2G network. It makes no sense for a student trying to study on it", he added.
He further submitted that the secondary schools students of the region are at a disadvantage while competing with students from other parts of the country having 4G net access.
Ahmadi urged the Court to allow the opening of high-speed internet at least on a "trial basis".
"At least on a trial basis open up the faster internet speeds. See how it works. Entire Jammu is peaceful. Large parts of Kashmir are peaceful. But if you lock the well there is be problem", he submitted.
Senior Advocate Salman Khurshid, in his rejoinder, submitted that there are options for blocking problematic sites, which should be explored instead of cutting off 4G completely.
The Central government had imposed a complete communications blackout in the erstwhile state of J&K in August 2019, right after abrogation of Article 370. Five months later in January 2020, on the basis of a Supreme Court order, the services were partially restored, only at 2G speed for mobile users. Access was provided only to a selected "white-listed" sites, and social media was completely blocked.
The Supreme Court had observed that indefinite suspension of internet is not permissible and restrictions on internet have to follow the principles of proportionality under Article 19(2).
The blockade on social media was lifted on March 4, but the speed was retained as 2G for mobile data.
After that, the J&K Administration passed several orders from time to time, retaining the speed restrictions. As per the latest order passed on April 27, the restrictions have been extended till May 11.
The administration stated that the speed restrictions have not affected COVID-19 control measures and online education.
Click here for the petition challenging the speed restrictions
Click here for the additional application filed by the petitioners
Click here to read the reply affidavit of the Government
Click Here To Download Written Submission of Petitioner
Click here to read the written submissions by all parties
Click Here To Download Order