On May 10, the Supreme Court refused to order the restoration of 4G Internet services in Jammu and Kashmir. The court, however, appointed a special committee comprising the Union Home Secretary as its chairperson and Secretary (Department of Communication) and the Chief Secretary of UT of J&K as its members to determine the necessity of the continuation of the restrictions on 4G Internet in J&K. J&K is having restricted internet speed since the abrogation of Article 370 on August 5. The authors discuss that the relevance of high-speed Internet services was never no critical as it is in the ongoing pandemic.             

 

THE Supreme Court of India, on May 10, refused to restore 4G internet services in the Union Territory of Jammu & Kashmir and directed to appoint a Special Committee to determine the necessity of the continuation of the restriction on 4G internet in J&K. While pronouncing the judgement, the apex court noted that it needed to ensure a balance of national security and human rights.

With the abrogation of Article 370, the unprecedented blackout of mobile and internet services was enforced in J&K on August 5, 2019. The central government only restored the cellular and 2G internet services on January 25. However, in the ongoing coronavirus pandemic, people in J&K, especially the doctors and students, are facing the brunt of the communication shutdown. The relevance of high-speed Internet services was never no critical as it is in the ongoing pandemic. The government continues to curb dissent and deprive the people of the valley of the basic fundamental right of access to the Internet in the ongoing pandemic and now took the excuse of ‘national security’.

It is important to point out that the global pandemic has shown the need of universal internet access as it has become the safest option to stay connected with your family, a medium for work and employment as many businesses have moved to online and most important it is helping the students to save their academic calendar. For the people in J&K, the transition through the pandemic has become more painful and exposed sheer violation of human rights and civil liberties by the government.

 

Anuradha Bhasin judgement

 

In the petition filed by Kashmir Times Editor, Anuradha Bhasin the main issue before the court was whether the indefinite internet suspension valid or not. The court examined the restrictions in the light of ‘doctrine of proportionality’ and declared that such suspension is very regressive.

In its judgement in Anuradha Bhasin v. Union of India, the Supreme Court though did not declare the right to access the Internet as a fundamental right; however, it held that “… the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of the Internet is constitutionally protected”.

The apex court also observed, that: “… Lastly, we think it necessary to reiterate that complete broad suspension of telecom services, be it the Internet or otherwise, is a drastic measure, must be considered by the state only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the state must assess the existence of an alternate less intrusive remedy.   Having   said   so, we   may   note   that   the   aforesaid Suspension Rules have specific gaps, which are required to be considered by the legislature.”

Precisely, the court laid down the rules on Internet shutdown which are bound to be scrutinized under Article 19(2) and 19 (6) of the Constitution of India. However, the implementation of the judgement was half-hearted, and the government under cover of ‘national security’ only restored 2G internet services for the people of Jammu & Kashmir.

These restrictions continue to be in contravention with the fundamental rights enshrined under the Constitution. The students of Jammu and Kashmir denied the right to education as they are not able to access the online classes due to poor internet services. On the other hand, the individuals who want to continue their trade and business online are also not able to have access to the Internet.

 

Why the full Internet services are critical in J&K?

 

There is a need for accessibility to the digital platform as Internet serves as a livelihood for many, but under the garb of these restrictions people are not able to perform their regular duties, students are not able to check their results, electricity bills are not processing online, the platform of online payment has been vandalized, and lastly the internet slowdown is taking away the right to work of many in the Kashmir valley who are losing their livelihoods. Freelancers and photojournalist are on halt because it would take around 1 hour to upload a single quality – created photograph. The 2G connection has turned out to be just enough to access email. It is not enough to even open the sites, which are listed by the government.

The contentions made by the government on the restrictions revolved around: cyber terrorism, national security and propagation of fake news throughout the valley, however, the government’s assumptions are not logically correct as there is no proof that suspension of internet services helped in reducing the militancy and violence in the valley. The restrictions on Internet services have impacted the fundamental rights of the people of Jammu & Kashmir in many ways.

In the ongoing pandemic, classrooms around the country have been shifted to digital platforms, and online lectures and counselling have emerged as an alternative to help students save their academic years. However, the students in Jammu & Kashmir are deprived of their basic fundamental right to education.

Not only the students are witnessing the shortage of basic resources, which are accessible through the Internet, but the doctors are also equally affected by the internet lockdown. On March 19, a resident doctor from Kashmir valley tweeted about how it took around an hour to download the guidelines for intensive care management as propounded by the doctors in England.

The Solicitor General on May 11 contended that radio and DD Channels had been channelized throughout the Union Territory for dispensation of public information, but what about those who are pursuing their under-graduate and post-graduate courses? The students of other states in India are using full internet services to learn and study for their curriculum, but the students residing in the valley are being restrained from access to speedy Internet. This is clear discrimination on the part of free speech and expression and that of equality with equity, which the Supreme Court has chosen to ignore. To curb the rash driving the cars aren’t banned. A university student was unable to submit his application on the 2G internet speed on his phone. On January 14, the government had claimed 844 internet terminals had been set up for the use of the general public and students. “But these kiosks are always overcrowded. You literally have to wait for hours for your turn,” said one student.

If we compare the situation with the International norms and precedents, in Estonia, the parliament had launched a massive program to expand internet access to the countryside, wherein the government itself argued Internet to be essential for life in the 21st century. The Article 5A of the Constitution of Greece states that all persons have a right to participate in the Information Society and that the state has an obligation to facilitate the production, exchange, diffusion, and access to electronically transmitted information. In June 2009, the Constitutional Council, France’s highest court, declared access to the Internet to be a fundamental human right in a strongly-worded decision that struck down portions of the HADOPI law. Therefore, the Supreme Court’s reasoning on balance between the national security argument and ‘accessible’ Internet is still not proportionate, and the former is dominating the later without any rational nexus.

 

Kerala High Court judgement on right to Internet

 

The Kerala High Court in a recent judgement directed that any restriction on accessibility to the Internet is a gross violation of the fundamental rights and right to have access to the Internet is part of the fundamental right to education as well as the right to privacy under Article 21 of the Constitution. The plea was moved by a student who contended that access to the Internet is a fundamental right and it is directly connected with the right to education, guaranteed under Part-III of the Constitution.

Justice P V Asha in her judgement observed: “When the Human Rights Council of the United Nations has found that the right of access to the Internet is a fundamental freedom and a tool to ensure the right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.”

From telecommunication to 2G internet, the journey has been a bit long, and it was finally because of the litigation that some resources were accessible to the people in Kashmir. At present, the court has directed to constitute a Special Committee to look into the prevailing circumstances and to examine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir.

The evident disregard for the right to privacy enables the criminalization of free expression. It facilitates government censorship of critical voices, fostering a culture of self-censorship and fear that further erodes the inherent right to hold and express opinions without interference. Accordingly, the wave of optimism that characterized the discourse surrounding the growth of the Internet and new technologies following the 2011 uprisings in North Africa and the Middle East, when many trumpeted the Internet’s potential to serve as a platform for freedom of expression, association and activism, is now being reversed. New laws are being leveraged to suppress criticism and dissent, effectively closing off space for free and open discourse on the Internet. This repression of critical speech violates article 19 of the Universal Declaration of Human Rights, which grants the right to freedom of opinion and expression, and access to information “through any media and regardless of frontiers”, as well as article 19 of the International Covenant on Civil and Political Rights, to which 172 countries are a party.

The digital future is already here. As nearly every aspect of our lives becomes digitized, we must ensure that laws and policies are based on fundamental rights. Regulations must enable us to satisfy our basic needs and flourish while offering protection against the abuse of power. Right to freedom of the Internet reflects who we are, and as an extension of one’s self, it must be guarded with the highest levels of protection. Hence the valley should be treated as an integral part of the Nation, or else the abrogation would be visible on papers but in reality, the Union Territory is being excluded from rest of the Nation, under the shelter of ‘National Security.’ The least of a leap of prosperity for individuals and the society conforms with the guaranteed basic and human rights, right not to be discriminated and the right to attain education is rights that can in no way be compromised or the constitutionalism that we as a nation endorse will be in great vulnerability, only for worse.

 

(Authors are law students at Aligarh Muslim University, Aligarh)

Note: This is an opinion piece, and the views expressed are the authors’ own.

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