The Supreme Court on Monday, 11 May, directed the setting up of a special committee to examine the contentions made by the petitioners seeking the restoration of 4G internet services in Jammu and Kashmir, “look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions”.
The committee will be headed by the secretaries from the Centre’s Home Ministry and Ministry of Communications, as well as the chief secretary of Jammu and Kashmir. The home secretary is to head it.
The apex court’s order notes that 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”, the fact that “outside forces are trying to infltrate 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.”
National Security vs Proportionality
The Centre and the government of J&K had submitted to the court that since 5 August 2019, when Article 370 was abrogated, around 108 terror-related incidents had taken place in the Union Territory, with 30 civilian deaths and 114 civilian injuries, and the deaths and injuries of 20 and 54 (respectively) security personnel.
The judges held that this had to be considered by the court, as did the fact that militancy had increased even further in recent times, with the J&K government submitting details of encounters and terrorist attacks in Kashmir from 26 April onwards, including the Handwara attack.
The judges also pointed to material from the J&K government that indicated ‘cyber terrorism’ is on the rise in the Valley, and that the Pakistan Military’s Green Book 2020 calls for information warfare relating to the region, following the abrogation of Article 370.
However, at the same time, the judges noted that the orders restricting mobile internet speed to 2G in J&K are blanket orders, and do not “provide any reasons to reflect that all the districts of the Union Territory of Jammu and Kashmir require the imposition of such restrictions.”
In view of the Supreme Court’s decision in the Anuradha Bhasin judgment in January on internet restrictions in J&K, the judges held 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.”
The Need for a Special Committee
This is where the new special committee is supposed to come in. It will examine the contentions by the petitioners, who have argued the need for restoration of 4G mobile internet for education and healthcare purposes during the coronavirus lockdown, along with the material provided by the government.
The committee will also need to “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 government of J&K.
According to the judges, this special committee is needed to supplement the work of the regular review committee set up under the Telecom Suspension Rules, as the existing committee only consists of J&K-level officials, while the coronavirus pandemic meant the issues raised in the petitions were of national interest.
The Court Hearings
Earlier, on Monday, 4 May, after two hours of detailed arguments via video conferencing, the Supreme Court had reserved its order on the petitions requesting an end to 4G curbs on mobile internet access (currently in place till 11 May).
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.
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, pointed out that only one percent of internet users in J&K had broadband connections.
The petitioners pointed out that while there could be restrictions on internet speed in terms of its facet of the right to freedom of speech and expression (under Article 19 of the Constitution), the need for information in the time of the coronavirus pandemic meant that this was a question of the right to life (under Article 21) at this time, where national security couldn’t be a justification for a blanket ban on the internet speed needed by so many.
They also contested the claims made by the government of J&K, in an affidavit, that requirements for education could be met on 2G speed, pointing out that this was too slow for interactive and video content.
The Centre and J&K government argued that restoration of 4G mobile internet was a threat to national security as fast internet could be misused by terrorists to keep track of troop movements and instigate violence.
Attorney General KK Venugopal, representing the Centre, even mentioned the Handwara terrorist attack as an example of terrorism in the Valley.
Solicitor General Tushar Mehta, for the administration of the Union Territory, insisted that the restrictions were in compliance with the law, including the guidelines laid down by the Supreme Court in its Anuradha Bhasin judgment from January, which had directed the government to review its restrictions on internet in the region.
After hearing rebuttals from the petitioners – who pointed out that there was no evidence of a link between 4G and terrorist attacks, and that the orders of the review committees on the need for the internet restrictions – the bench of Justices NV Ramana, Subhash Reddy and BR Gavai reserved their decision.
These were the same judges who passed the apex court's January order directing review of internet restrictions in J&K.
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