The Portrait of Internet Shutdown in Jammu & Kashmir
Article 370 has a significant importance for the Indian subcontinent. Maharaja Hari Singh signed the controversial Instrument of Accession with the Government of India in October 1947 and JK became the part of the Union of India. It was stipulated that special provisions would be granted to the people of Jammu & Kashmir.
It has been more than a year since India strips Kashmir of special status and divides it into two union territories. The constitutional changes and unilateral bifurcation, as the critics say, was a constitutional fraud done by legal sleight of hand.
An advisory dated August 2 2019 was issued by the home department of J&K, directing the immediate evacuation of Amarnath yatra and students from different parts of India studying in Jammu and Kashmir. On August 4 2019, all movements were blocked and communications were shut, miring the erstwhile State into a complete blackout. Still, the pretext was a potential ‘terrorist attack’!
The August 5, 2019 event concertized the fate of Jammu and Kashmir for times to come. The Union home minister Amit Shah, on that day introduced the Jammu & Kashmir Reorganization Bill in the Rajya Sabha. Amid heavy opposition, the bill got passed. Subsequently, the bill breezed with 370 votes in favor in the Lok Sabha. Lastly, the Presidential assent graduated the bill to a law.
Article 370 has a significant historical background for the Indian subcontinent. Maharaja Hari Singh signed the Instrument of Accession with the Government of India in October 1947 and the erstwhile princely State became the part of the Union of India. It was stipulated that special provisions would be granted to the people of Jammu & Kashmir. Hence, Article 370 was incorporated in the Constitution in 1949 to confer the promised special rights. Subsequently, Article 35A was introduced through a presidential order in 1954. It empowered the legislatures of J&K to define permanent residence, rights and privileges.
The sudden abrogation of the conferred rights felt them jilted, cheated and lesser “constitutional common”.
The political drama followed curfew and unfettered restrictions on the people of the State. The restriction went on for days when finally Anuradha Bhasin, the editor of the Kashmir Times, filed a petition before the Supreme Court pleading that complete restriction on movement and communication has limited the journalists to report and publish the news and that was, according to her, violation of the Article 19, which guarantees Freedom of Right to speech and expression. The proceeding continued for months and finally, on January 10, 2020, the Supreme Court pronounced its judgment. The judgment paved the way to ease the restrictions. The internet speed is still lingering at 2G speed, making the life of residents miserable amidst pandemic.
Article 370 has a significant historical background for the Indian subcontinent. Maharaja Hari Singh signed the controversial Instrument of Accession with the Government of India in October 1947 and the erstwhile princely State became the part of the Union of India. It was stipulated that special provisions would be granted to the people of Jammu & Kashmir. Hence, Article 370 was incorporated in the Constitution in 1949 to confer the promised special rights.
First, I shall briefly discuss the problems faced by the people of Jammu & Kashmir due to low internet speed, followed by the judgment of the court in the Anuradha Bhasin’s case. Thereafter, I shall discuss the subsequent judgment on the 4G restoration filed by the Foundation for Media Professionals and cull out the important principles laid down in both the judgments. Finally, I shall analyze the order published by the Government under Telecom Suspension Rules with the laid down principles.
How low Internet speed affecting the life of Jammu and Kashmir
The Internet was restricted under ‘Temporary’ suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. Ironically, the prolonged restrictions rendered the word ‘Temporary’ meaningless as the Supreme Court conceded during the proceeding of the Anuradha Bhasin’s case that there exists a gap in the law.
The pandemic made it easier for the State to impose restrictions. Doctors and Health care professionals have thus shifted to Telemedicine to diagnose the patients. Telemedicine diagnosis became impossible on 2G speed and eventually, patients flocked to hospitals to make things worse. Doctors and Healthcare professionals have also not been able to check the prescribed protocols, manuals, advisories and latest studies related to Covid-19. It also limited the dissemination of accurate information, precaution and health-care guidelines to the general public. The curtailment on internet speed has made the life of the residents more vulnerable. It contradicts the judgment by the Supreme Court In Paschim Banga Khet Mazdoor Samity & Ors v State of West Bengal (1996) 4 SCC 37. In this case, the Supreme Court has found that Article 21 imposes an obligation on the State to safeguard the Right to life and preservation of human life as of paramount importance.
Similarly, the students of J&K have also borne the brunt of Internet restriction. The school and colleges of Jammu and Kashmir were already locked down for half of the year of 2019. During the pandemic, the schools and colleges in different states have shifted to online education. However, it has become relatively impossible in J&K to take classes on 2G speed. The central Government has arranged some educational classes for the elementary class students on Television and Radio, but students have found them inadequate. On the other hand, students of professional courses and those enrolled in colleges have been deliberately left out. There is almost no scope for them to attend webinars, join internships, or take part in any virtual activities.
The pandemic made it easier for the State to impose restrictions. Doctors and Health care professionals have thus shifted to Telemedicine to diagnose the patients. Telemedicine diagnosis became impossible on 2G speed and eventually, patients flocked to hospitals to make things worse. Doctors and Healthcare professionals have also not been able to check the prescribed protocols, manuals, advisories and latest studies related to Covid-19.
There have been numerous judgments in the past, both in the Supreme Court and in different high courts, that speak the significance of proper education through various means. One of the remarkable judgments laid down recently in the Kerala High court is Faheema Shirin R.K vs. State of Kerala and others W.P(C).No.19716/2019, where the court has held the Right to the Internet is part of the Right to education and privacy. It said, “Going by the aforesaid dictum laid down in the said judgment, the right to have access to the Internet becomes the part of the right to education as well as the right to privacy under Article 21 of the Constitution of India.”
Likewise, trade, business and occupation have also affected on a large scale. All e-commerce businesses are temporarily shut or working under-limit. This has led to a financial crunch and joblessness in the sector. Various Tourist businesses are also facing obstruction in communicating their customers online.
Thus, it can be concluded that while different facets of life are impaired, various fundamental rights are also at stake.
Analysis of Anuradha Bhasin vs. Union of India
The judgment was a significant breakthrough. It laid down regulations as varied as procedural safeguards to implement Temporary Suspension Rules, noted Sec. 144 of Cr.P.C. It stated that it is inappropriate to suspend telecom services and cited the proportionality standard lay down in Justice K.S. Puttaswamy vs. Union of India. More crucially, it demarcated the Internet, not a fundamental right itself but comes under the Right to speech and expression, i.e., Article 19(1)(a) and Right to conduct business and practice a profession, i.e., Article 19(1)(g).
The Supreme Court apprised that Suspension orders must be made public so that it could be challenged before the court. Also, the State could not get-away to publish orders citing any administrative inconvenience or concern. If the State finds a ground for any inconvenience, then it must be produced before the court so that the court could decide whether privilege stands justifiable or not. The court made it very clear that if a fundamental right has been intruded, the State cannot remain immune from judicial review even if it has taken in pursuance of national security.
The Supreme Court has categorically put down various prongs in order to test the proportionality standard; the unabated Internet speed restriction has utterly failed the precautionary measures.
1. There has to be a rational nexus between the aim sought to be achieved and what the Government intends to do. While there have been no studies carried out to empirically justify the effectiveness of the internet shutdown on people’s mobility, the Government largely relies on the apprehension that internet shutdown would successfully control the gathering. The Government has readily failed to show a causal link between the two. Although the Government, in its counter-affidavit in FMP v UOI (supra), has cited an article by Prof. Gregory S. McNeal claiming the Internet as a useful tool to spread propaganda, surprisingly, the writer himself never advocated for the internet shutdown rather suggested for a blockade of specific websites. On the contrary, a research paper recently published by the Royal United Service Inst. for Defense and Security and The Observe Research Foundation on the topic, ‘The Conflict in Jammu and Kashmir and the Convergence of Technology and Terrorism’ has found internet shutdown ineffective to stop the assemblage of people in Kashmir.
2. The Government should adhere to the least restrictive measures available. Though the restrictions on the Internet have been eased from time to time, it is still restricted to 2G services for post-paid and verified pre-paid users. The adopted measure could not be said to be least restrictive due to the following reasons.
• First, instead of constricting the complete internet facility, a ban on selective websites could be put in place that potentially hosts illegal content. The move could be accomplished under Sec. 69A of the I.T. Act, 2000, the way the Chinese apps were recently banned for allegedly posing a threat to sovereignty and security of the State.
• Second, one of the grounds that is always proposed by the Government to restrain the internet speed is that it could lead to mass agitation. However, on any anticipation of a Law and Order situation, authorities have the liberty to impose congregation restriction under section 144 of Cr.P.C. The threat, however, has to be ‘real’ and ‘imminent’ as categorically stated in the case of Ramlila Maidan Incident Dt.4/5.06.2011 vs. Home Secretary, Union of India & Ors.
• Third, the Government can set up a separate organization, including various stakeholders, to keep vigilance on the contents floating on the Internet. The organization, however, has to be circumvented under a proper legal framework so that it could diligently take down any unlawful content, but at the same time, Right to speech, expression and dissent have to remain intact in letter and spirit.
• Fourth, the State has already prohibited the Internet on unverified prepaid SIM cards. Since verified prepaid SIM cards and post-paid connections can be more easily traced, they are unlikely to be used for any illegal activity. Thus 4G speed should be made available on both the SIM cards.
3. That there must be a proportionate balance between the interests of the State and the extent of the restrictions upon fundamental rights. It has already been demonstrated above how the pandemic in conjugation with low internet speed has brought lots of trouble for the people of Jammu & Kashmir. The whole world is suffering from the wrath of COVID-19 and people have been subdued in their houses.
Foundation for Media Professionals vs. Union Territory of Jammu and Kashmir & Anr
Another important judgment that came subsequently after the Anuradha Bhasin (Supra) was the Foundation for Media Professionals vs. Union Territory of Jammu and Kashmir & Anr. The non-conformity of procedural safeguards laid down in Anuradha Bhasin’s judgment while issuing orders under Telecom Suspension Rules leads the petitioner to plead before the court. Further, the authorities contravened by not citing the proper reasons to continue the traumatic low internet speed. Thus, the petitioner wanted immediate restoration of 4G internet speed in view of increasing Coronavirus.
Anyhow, the Supreme Court out rightly declined the restoration of 4G speed and formed a special committee to look into the issue. This incongruous order made many legal scholars perplexed. They charged the Supreme Court of abdicating its constitutional duty to adjudicate when fundamental rights of people are in peril.
Notwithstanding, the two very important aspects of the judgment were:-
1. The special committee consisting of Secretary, MAH, Secretary Department of Telecommunications and Chief Secretary of J.K. It would examine the various contentions put forth by the petitioner and the necessity to continue the restriction on internet speed. Strangely even after passing several months, there is no information on the formation of the committee in the public domain, let alone reviewing the order issued by the authority.
2. The court reiterated what has been emphasized in the Anuradha Bhasin Judgment that restriction must be narrowed down temporarily and territorially and there seems no reason to validate the blanket restriction all over the place.
What the latest order on speed restriction has to say
The latest order to continue the 2G internet speed was published on July 8 2020. The order elaborates on the reason to justify the continuation of restriction as compared to the previous orders that lack the clarity to elongate it. Nevertheless, the order contains certain irregularities and contradictions.
The order has again imposed a blanket restriction despite the Supreme Court’s categorical direction to narrow it down. Most of the districts of J&K are at peace and not a single case of terror-related activity has been recorded except some far-fletched districts. The authorities could have at least commenced the high internet speed on a trial basis, as was already discussed in Anuradha Bhasin Judgment.
1. The text underlined in orange undermine the guideline laid down in the Anuradha Bhasin (Supra) to review the order in every 7 working days from the date of the order published for precisely two reasons:
• The order has been effectuated until July 29 i.e., 21 days, whereas it was meant to be published for 7 days so that after the review of the special committee, the order could have modified, scrapped, or would have kept going as it was.
• The last assessment of the ground situation was conducted on June 17, i.e., 21 days before the order was published and accordingly, the restrictive order was passed. This compromises the spirit of review guideline that mandates to probe the situation in every 7 days.
2. The order has again imposed a blanket restriction despite the Supreme Court’s categorical direction to narrow it down. Most of the districts of J&K are at peace and not a single case of terror-related activity has been recorded except some far-fletched districts. The authorities could have at least commenced the high internet speed on a trial basis, as was already discussed in Anuradha Bhasin Judgment.
3. The text underlined in red, which says no adverse impact has taken place that contradicts the ground-situation in J&K. Here, I would like to share the experience of a student, namely Sharida Rashid Khan, who lives in the Anantnag district of Kashmir. She says, “After 213 days of complete communication blockade, the Government has restricted it to 2G internet speed since March 2020. As a student and resident of Kashmir, I am suffering a lot due to the low internet speed. We cannot attend online classes or submit assignments. When most of the students are relying on the Internet to work, attend classes, or even soothe their minds through entertainment, we are unjustly barred from the same. Such deprivation has resulted in psychological trauma and torment for us and adversely impacting our mental health. My father is a contractor and he has to pay GST and Provident fund after a certain period and for that, now, he has to travel a long distance in the middle of the pandemic, which is highly risky. Restriction on high internet speed has limited the proper dissemination of relevant information, safety measures and precaution to fight the noble Coronavirus. People of Kashmir have already suffered from state violence and now the 2G Internet is making it more miserable and cumbersome.”
‘Rights are fundamental and not restrictions,’ said K.G. Kannabiran in his book ‘Wages of Impunity’. Every measure of the Government should be taken while keeping the sacred Fundamental Right in the middle of it. How long would the Government restrict the speed on the pretext of its misuse? Hence, it can be concluded that to stop a group of people from taking water from a well, the whole well cannot be seized.
Arsalan Ahmed is the student of law at Aligarh Muslim University and can be reached at firstname.lastname@example.org
Disclaimer: Views expressed are exclusively personal and do not reflect the stand or policy of Oracle Opinions.