It has been over two months now since the Supreme Court of India ordered the constitution of a Special Committee to “look into the prevailing circumstances and immediately determine the necessity of the continuation of [internet] restrictions in the Union Territory of Jammu and Kashmir” during the coronavirus pandemic.
Yet, not only has the central government failed to set up the Special Committee which it was supposed to do “immediately”, but a contempt petition filed with the Supreme Court – informing the court of the government’s failure to comply with the Supreme Court's own order, and asking the Court to direct the government to obey the order – has not been listed for hearing, despite being registered over a month ago.
The apex court’s failure to list the case appears to fly in the face of its own standard operating procedure on mentioning and listing of urgent cases.
More importantly, this has had a serious impact on the lives of the people of J&K as restrictions on mobile internet speed continue to be imposed over and over again across the union territory by the government of J&K, with none of the assessments of legality and proportionality that the Special Committee was supposed to undertake.
11 May 2020: Supreme Court orders setting up of Special Committee to immediately review net speed restrictions in J&K.
8 June 2020: Foundation for Media Professionals files contempt petition and application for directions with Supreme Court as no Special Committee set up.
13 June - 6 July 2020: FMP makes requests for urgent listing of contempt petition. Court does not list the petitions, no Special Committee set up.
8 July 2020: J&K Government continues blanket 4G ban across J&K, without review by Special Committee as ordered.
14 July 2020: Still no listing of contempt petition by apex court.
WHAT HAD THE SUPREME COURT ORDERED TWO MONTHS AGO?
It was on 11 May that the Supreme Court had directed the setting up of the Special Committee to examine the continued internet restrictions in J&K.
The court had been hearing several pleas filed by petitioners including the Foundation for Media Professionals, who had argued that the restrictions on internet access – originally imposed in the aftermath of the abrogation of Article 370 in August 2019 – violated the fundamental rights of the people of J&K.
The J&K government has restricted internet speed to 2G on prepaid mobile networks, with repeated orders quoting national security as a reason for the same. Although there are no curbs on broadband internet speed, senior advocate Huzefa Ahmadi, representing the Foundation of Media Professionals, had explained that only one percent of internet users in J&K had broadband connections.
The petitioners presented arguments on how the restrictions on internet access were affecting education and healthcare, and pointed out that with the increase in COVID-19 cases in J&K, people needed to access mobile internet at 4G speeds to obtain necessary information, and go about life and work as required in the current situation.
The judges acknowledged the arguments by the Centre and the J&K government, that terrorist attacks had been on the rise in the region, and that restrictions on internet speed could be required in the interests of national security.
However, the judges also noted that the orders restricting mobile internet speed in J&K are blanket orders, and that the governments had failed to explain why all the districts of the union territory required such restrictions. The bench of Justices NV Ramana, Subhash Reddy and BR Gavai recalled their own decision earlier in the year about internet restrictions in J&K and said that
“the authorities are required to pass orders with respect to only those areas where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier.”
This was why the Special Committee was to be constituted.
WHY HAS A CONTEMPT PETITION BEEN FILED?
The Special Committee was to be comprised of top bureaucrats from the Centre’s Home Ministry and Ministry of Communications, as well as the chief secretary of J&K.
The court felt that this Special Committee was required to look into the issue of internet restrictions in J&K as currently, only J&K-level officials are assessing the same. But because of the COVID-19 pandemic, there were issues of national interest involved, hence the need for central bureaucrats to examine whether the restrictions were suitable.
The Special Committee was supposed to examine the alternative proposals suggested by the petitioners, including limiting the restrictions to areas where a terrorist attack is suspected/has happened, and allowing 3G internet in some areas. They were then supposed to advise the J&K government about what to do.
This was clearly an important function, and the judges specifically said this had to be done on an immediate basis, given the on-going nature of the COVID-19 crisis. The failure of the government to comply with the order, without any justification, is therefore clearly contempt of court.
WHY IS THE DELAY IN LISTING THE CONTEMPT PETITION A PROBLEM?
There was already criticism of the Supreme Court’s judgment because it effectively gave the government the power to review the government’s own decisions and decide if they were right or wrong.
Given that the court had decided not to keep the power of review with themselves, and there is no other method in place for the people of J&K to raise their concerns over the internet speed restrictions, the government’s compliance with the court order was vital.
In light of the pandemic, which has made online communication the only method for so many vital aspects of life, there is little question that reviews of the restrictions – even if they are then upheld – is a matter of urgency.
The contempt petition and application for directions are the only way in which the government’s failure to comply can be remedied, and so there are sound grounds to ask for them to be listed urgently so that the court can pass an order
When it comes to listing of cases, the Supreme Court has issued multiple standard operating procedures (SOPs) during the pandemic. In all these SOPs, the court has said that if a request for urgent listing is received in time (2 pm during regular days, 5 pm during court vacations), the matter can be included in the list of cases to be heard on the next working day (the ‘cause list’).
However, even though the Foundation for Media Professionals has followed the rules set out in the SOPs dated 16 May, 19 June and 4 July, to request urgent listing of the petitions three times (on 13 June, 22 June and 6 July), the contempt petitions have still not been listed – with no reasons provided.
Senior advocate Dushyant Dave sees this as part of a bigger problem of crucial cases not being heard by the apex court:
“A large number of matters relating to J&K are not being listed. Many other equally important matters are not being listed. Many litigants’ matters, who need urgent relief like pensioners, workmen, teachers, are not being listed... Habeas corpus, bail matters, detention matters, the judges have virtually paralysed justice delivery – they are singularly responsible for this.”
HOW ARE THE INTERNET RESTRICTIONS BEING REIMPOSED IN J&K?
As mentioned, the Supreme Court specifically criticised the way the internet speed restrictions were imposed in a blanket manner.
However, following the Supreme Court judgment on 11 May, the J&K government has reimposed the speed restrictions across the union territory in exactly the same way on 11 May itself, and then again on 27 May, 17 June, and most recently, 8 July.
The government of J&K also claims in each order that the restrictions have not impacted the efforts of the government when it comes to COVID control, education and business activities – which is of course something the Special Committee is supposed to decide now.
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