The Jammu and Kashmir government’s orders do not reveal any reason for making mobile 4G Internet inaccessible across the Union Territory (UT), the Supreme Court said in an order on Monday.
Besides, the government orders snipping the Internet speed to 2G were meant to operate for only a limited time.
“Although the present orders indicate that they have been passed for a limited period of time, they 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. At the same time, we do recognise that the Union Territory has been plagued with militancy, which is required to be taken into consideration,” a three-judge Bench led by Justice N.V. Ramana observed in the 19-page order.
The order was based on petitions filed separately by media professionals, school associations and private citizens claiming that lack of access to high-speed Internet in J&K had crippled medical efforts to contain the COVID-19 contagion and pulled the rug under online education and businesses. The government, on the other hand, maintained that high-speed Internet was a facilitator of terrorism in the UT.
On Monday, the apex court appointed a special committee led by the Union Home Secretary to “immediately” determine the necessity of continuing the restrictions in J&K.
The court directed the panel to examine the “appropriateness” of the petitioners; suggestion to limit the Net restrictions to areas where it was necessary and allow faster Internet (3G or 4G) on a trial basis in certain geographical areas and advise the J&K government on it.
Anuradha Bhasin judgment
The court took a leaf from its Anuradha Bhasin judgment of January 2020, which dealt with the months’ long curfew imposed in J&K following the abrogation of Article 370, to quote that restrictions should not be disproportionate to the “emergent situation”.
“The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation,” the court reminded the Centre and the J&K government.
The Bench pointed out how in the Anuradha Bhasin case, it had directed orders restricting Net access under Rule 2(2) of the Telecom Suspension Rules to be placed before a review committee. It highlighted that the Rules mandated adequate safeguards to ensure that the restrictions were “narrowly tailored”.
Nevertheless, the court did not discount the Centre's reasons for the restrictions, which included “continuous infiltration, foreign influence, violent extremism and issues of national integrity prevalent in J&K”. These were indeed serious issues. But hardships faced by citizens during the COVID-19 pandemic also raised serious concerns, it said.
In such a sensitive case, the court had to “reasonably and defensibly” balance national security concerns and the rights of the citizens.
It said the government orders on Internet restrictions concerned both the UT and the nation as a whole. Hence, the review committee would require officers drawn from both the Union and the State services.
“We are of the view that since the issues involved affect the State, and the nation, the Review Committee which consists of only State level officers, may not be in a position to satisfactorily address all the issues raised. We, therefore, find it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir,” the court observed.
The other members of the committee are the Secretary of the Department of Communications and the Jammu and Kashmir Chief Secretary.