This article is written by Jisha Garg, a student currently pursuing B.A.LLB (Hons.) from Rajiv Gandhi National University of Law, Punjab. This is an exhaustive article dealing with the issue of restoring 4G internet services in Jammu and Kashmir which was announced after the abrogation of Article 370 of the Indian Constitution. The article attempts to analyse the effects of such a shutdown amid a pandemic and the Supreme Court’s decision on the subsequent matter. 

Introduction

India, the world’s largest democracy, became a global leader in internet shutdowns by shutting down the internet 121 times in 2019 far surpassing many authoritarian countries. According to a report by digital privacy group Top10VPN, there were more internet and social media shutdowns reported in 2019 than in any year prior—an increase of more than 10%. Internet shutdowns have not only had effects on the freedom of speech but have also proven catastrophic for the economy of the country. According to an estimate, Internet shutdowns have cost the economy $1.3 Billion in 2019 alone.

When the internet shutdown was first announced by the Government in Kashmir, it justified it by stating that the move was essential to curb the menace of false information. However, various human rights activists have voiced their concern for using misinformation as an easy scapegoat for announcing internet shutdowns.

Human rights activists have often expressed their distress regarding internet shutdowns being a case of human rights violations. India remains one of the first countries to bring a law for internet shutdown in 2017. According to research conducted, internet shutdowns have failed to achieve their desired objectives. The primary purpose of announcing shutdowns is to pacify protests and avoid the spread of misinformation. However, the study found that the shutdowns were followed by violent protests further exacerbating the situation.

A similar shutdown was announced by the Union Government in August 2019 after abrogating Article 370 of the Indian Constitution. The article attempts to analyze the background of the internet shutdown. It further specifies the effects of such a shutdown amid a pandemic. The article also deals with the Supreme Court’s decision on the aforementioned case.

History

The history of the conflict in Jammu and Kashmir can be traced back to colonial times when India got independence in 1947. After independence, the princely states were given three choices- stay independent or join either India or Pakistan. Jammu and Kashmir were one of the princely states whose status was undecided. The then ruler of Jammu and Kashmir, Maharaja Hari Singh, signed an agreement with Pakistan, effectively opting for the status quo. After some time, Pakistani troops started infiltrating Jammu and Kashmir. It was at this time when Maharaja Hari Singh sought India’s help. He reached out to PM Jawaharlal Nehru and Patel who agreed to send troops on the condition that the Maharaja sign an instrument of accession in favour of India handing over the control of foreign affairs, defence and communications. The Indian troops were sent to Jammu and Kashmir and the conflict continued.

In 1948, Hari Singh appointed an interim government with Sheikh Abdullah as the Prime Minister. Sheikh Abdulla and his three colleagues were appointed as members of the Constituent Assembly in order to discuss the provisions of Article 370 which would provide special autonomy to the region. When the Indian Constitution came into existence in 1950, Jammu and Kashmir were defined as a state of India and it was provided special status under Article 370. Later, the Constituent Assembly of Jammu and Kashmir was formed in order to frame their Constitution. In 1956, Jammu and Kashmir adopted its Constitution and defined itself as an integral part of India. Since then, there have been several conflicts with Pakistan and China over the possession of J & K. Military conflicts are common in the region and the region has also seen the infiltration of terrorists over the course of time.

Background

In the summer of August 2019, the Union Government revoked the special status provided to the special administrative region of Jammu & Kashmir under Article 370 of the Indian Constitution. Article 370 of the Indian Constitution gives special autonomy to Jammu Kashmir with the state government having the power to make its own laws without seeking assent from the Union Government. Under Article 370, the laws formulated by the Union government were not applicable to the state without the consent of its legislative assembly. The State government has the power to make laws on varied subjects including citizenship and property rights except for foreign affairs, defence and communications, on which laws are made by the Central government. Jammu & Kashmir also had their own constitution and a separate flag under Article 370.

With this announcement, the Modi government has withdrawn and upended seventy-year-old legislation. The step of scrapping Article 370 was in furtherance of fulfilling one of the electoral promises of the elected government. Not only did the government scrap Article 370 but also transform the state into two Union Territories. One region will combine Hindu-majority Kashmir and Muslim-majority Kashmir and the other will be the Buddhist-majority Ladakh. The division of the state into two UT’s would mean that the state government would no longer have its own Constitution and own laws but the Constitution of India and its laws would be applicable to both the regions.

The scrapping of Article 370 was followed by complete security and communications lockdown in the valley. Thousands of activists including many pro-India leaders were arrested. All the internet and broadband services were suspended. This was done by the government due to national security concerns and to maintain the law and order situation in the valley. However, after a prolonged period of internet suspension, it was called into question by many. This is why various petitioners filed a case in the Supreme Court of India for the restoration of 4G internet services in Jammu & Kashmir.

Contentions put forward by both the sides

The government has justified the imposition of restrictions by emphasising on law and order, preventing the loss of human lives, internal security, geographical proximity with Pakistan, circulation of inflammatory material among other things. The petitioners contended that the prolonged internet shutdown and the operation of 2G internet in various regions were infringing the fundamental right to access the internet which is causing a loss to the education and healthcare in Jammu and Kashmir. There were various contentions put forward by both the parties.

Argument of Terrorism

The government argued that providing high-speed internet would lead to terrorism. The government also claimed that mobile phones with 4G networks may be used by various terrorists for anti-national activities and then thrown away. It was due to these security concerns that it was not restoring 4G internet services in the region, however, the petitioners claimed that most of the acts of terrorism during the ’90s were done when there was no availability of 4G internet services. Also, the government has failed to provide any empirical data on a nexus between the 4G network and terrorism.

The Anuradha Bhasin Case

In the Anuradha Bhasin v. Union of India case, the Supreme Court ruled that an indefinite suspension of internet services would be illegal under Indian law and that orders for internet shutdown must satisfy the tests of necessity and proportionality. The petitioners argued that the speed restrictions imposed on the internet services in the state violated the principles of reasonableness and proportionality as laid down in the Anuradha Bhasin case. The J & K administration has also failed to carry out “periodic review” of the internet restrictions as provided in the aforementioned case.

Suggestions given by the Petitioners

Senior advocate Salman Khurshid, representing the petitioners’ side, suggested that a pilot project for easing relaxations on high-speed internet services be initiated. Since the entire Jammu has been peaceful and the majority of Kashmir is also peaceful, it is time that the internet is slowly restored in the non-disputed regions. Countering the government’s argument of security concerns, he suggested that restricting access to certain social media platforms and other problematic sites would be more reasonable rather than suspending the entire fast-track internet services in the region.

The Supreme Court’s Decision

The Supreme Court refused to pronounce any orders on the restoration of the 4G network in response to the various petitions filed. The Supreme Court also held that there was a need to strike a balance between the right to access the internet and security concerns of the state. Although the Supreme Court refused to pronounce positive directions for restoring 4G services in the state, it ordered the formation of a committee for adequate procedural and substantive safeguards to ensure the imposed restrictions are narrowly tailored. 

The formation of the committee was as per the directions of the Anuradha Bhasin judgment. However, the Court held that the Anuradha Bhasin judgment provided for a committee in case of state actions. On the contrary, the case in question was related to the actions of the Union government and would affect the entire country. Therefore, the Court altered the composition of the committee. The committee would be headed by the Secretary, Ministry of Home Affairs and the other two members would be The Secretary, Department of Communications, Ministry of Communications, Government of India and The Chief Secretary, Union Territory of Jammu and Kashmir.

The impact of the Internet Suspension amid the pandemic

The Impact on Education

Senior advocate Salman Khurshid, who was representing the petitioners, submitted that the suspension of the 4G internet services was infringing the Right to Education by restricting access to the online classes. He contended that it is not possible to utilize interactive classes by 2G network and it is the sole source of education during the pandemic. He also submitted that the private schools were directed by the government to provide education through video-conferencing and the State was under an obligation to provide education under the Right to Free and Compulsory Education Act, 2009.

The Impact on Health Services

Senior Advocate Huzefa Ahmadi submitted that doctors were finding it difficult to function effectively in the absence of 4G speed amid the outbreak of the pandemic. He highlighted that there are 701 cases of COVID-19 and 8 deaths in the region. When the petition was filed, there were 33 cases and the infections are fast escalating. Doctors need a high-speed net for accessing the latest updates on COVID-19 and for online consultations with the patients. Cases of deaths due Coronavirus went unreported due to lack of 4G internet services. People are finding it difficult to access healthcare services due to the lack of adequate internet services in the Union Territory.

Conclusion

Internet shutdowns have posed a serious threat to democracies across the world. India has been the most dangerous victim of this with the most number of internet shutdowns in 2019. Frequent internet shutdowns are indicative of a threat to Right to Freedom of speech and expression in the country. A similar shutdown was announced in Jammu and Kashmir after the central government revoked Article 370 of the Indian Constitution. The decision to announce a shutdown amid the outbreak of a pandemic adversely impacted the right to access education and healthcare in Jammu and Kashmir. When the matter went to the Supreme Court, it ordered the formation of a committee for reviewing the decision of the government to continue internet shutdown in Jammu and Kashmir. 

Critics have pointed out that the Court finally abdicated the judicial task of deciding upon the constitutional validity of the internet suspension to a “special committee”- composed of members of the executive. Therefore, this abdication completely abandons the principle of checks and balances by asking the executive to review its own orders. In my opinion, the court should have been stricter in its approach. It should have remained consistent with the law it laid down in Bhasin and struck down the admittedly unreasoned suspension orders.

Although such an approach would not prevent the passing of such fresh suspension orders, it would certainly compel the government to think more seriously and narrowly tailor its future orders so that they only fit existing security needs and go no further.

References

• https://economictimes.indiatimes.com/topic/Internet-Restoration-in-Jammu-Kashmir

• https://thewire.in/law/jk-plea-in-sc-for-restoration-of-4g-mobile-internet-services-amid-covid-19-crisis

• https://globalfreedomofexpression.columbia.edu/cases/bhasin-v-union-of-india/
• https://www.firstpost.com/india/govt-told-to-restore-essential-internet-services-in-kashmir-within-seven-days-by-supreme-court-7888101.html

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