Listen to this articleFOUNDATION
FOR MEDIA v. U.T. OF JAMMU AND KASHMIR & ANR.
Writ
Petition (D. No. 10817 OF 2020) (Civil) of 2020, decided on May 11th,
2020
https://main.sci.gov.in/
Bench:
N.V.
Ramana, R. Subhash Reddy, B.R. Gavai, JJ.
Facts
As per the facts of the case, the J&K Government(Respondent
1) had passed an order restricting the use of 4G mobile internet and had
reduced it to a mobile internet speed of 2G. The aggrieved
parties in the present case approached the Supreme Court to challenge the order
pronounced by the government which restricted the use of 4G mobile internet
within the territory of the Jammu and Kashmir Union Territory. According to the
petitioners these restrictions imposed on the residents of Jammu and Kashmir
had a detrimental affect on their lives. The petition also highlighted that
such restrictions also affected the right to
business and right to freedom of speech and expression. Furthermore, the
petitioners also contended that such harsh restriction during the all India lockdown
and the ongoing pandemic of COVID19 would also be detrimental in catering to
the medical needs of the people and that the fulfilment of the right to health
is dependent on the availability of effective and speedy internet in order to
access medical services and information on containment strategies. The denial
of such critical information not only violates the peoples’ right to receive
information, but is also a denial of their right to health. The petition,
addressing the situation of students amidst this lockdown highlighted that such
restrictions on internet speed directly impacts the students of Jammu and
Kashmir to exercise their right to education as they are unable to access to e-learning
services such as online video classes, and other online educational content.
This not only impacts their continuing education, but also disadvantages the
students of Jammu and Kashmir who are preparing for national/competitive exams.
As
it can be seen, all the issue involved in this case were related to the conduct
of the executive agencies and there was not any dispute regarding the
interpretation of law, rather the dispute was regarding the application of law.
Question
of Law:
The
bench, primarily, was required to address the following issues: –
Whether
the government of the Union Territory of Jammu and Kashmir violated the
conditions laid down in the case of Anuradha Bhasin v. Union of India,
(2020) SCC Online SC 25?
Held:
The court did acknowledge that there needs to be a balance
between the fundamental rights of the citizens and the national security
concerns. This should be determined on the basis of facts of the situation. The
bench held that the court was cognizant with respect to the national security
concerns of the country and ensuring the maintenance of liberty and freedoms
granted to the citizens by the constitution. The court analysed several reports
highlighting the latest militancy trends in the Union Territory of Jammu and
Kashmir, which were presented by the Respondent No.1 in order to justify the
impugned order.
As far as the first issue in front of the bench is concerned,
the bench looked into the efforts initiated by Respondent No.1 after the
pronouncement of the judgement in the Anuradha Bhasin case. A proper
analysis of these steps was done by the bench, which justified the impugned
order through its views in the following manner: – “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. However, the
fact that outside forces are trying to infiltrate 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. However,
the authorities in the Union Territories of Jammu and Kashmir have
selected the 2G speed to restrict the flow of information in order to prevent
misuse of data by terrorists and their supporters to disturb the peace and tranquillity
of the Union Territory of Jammu and Kashmir”.
Although, the court did hold that the impugned orders had been
passed for the entire Union Territory of Jammu and Kashmir and that this aspect
of the impugned order, defeated the objective criteria of determining the
degree of such restrictions.
As held by the court in the Anuradha Bhasin case, “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.” As per the observations of the court, one of the
criteria applied for testing the proportionality of the orders was the territorial
extent of the restrictions. Affirming to the observations made in the Anuradha
Bhasin case and analysing the reports regarding the latest militancy
trends in this region, the authorities shouldn’t have imposed such restrictions
in the whole territory of the Union Territory of Jammu and Kashmir, even if
they were imposed for a short interval of time. The bench pointed out the
fallacies in the impugned order of the government and indicated the areas where
it violated the precedent set in the Anuradha Bhasin case and suggested
that the authorities should have passed this order with respect to only those
areas where there was absolute necessity of such restrictions.
Question
of Law:
(i)
Whether the government of the Union
Territory of Jammu and Kashmir violated any provisions of the Temporary
Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017
Held
With regards to the second issue at hand, the courts had to
determine whether the impugned order was in contravention with
any of the provisions of the Temporary Suspension of Telecom Services (Public
Emergency or Public Safety) Rules, 2017 or not. The court, again, referred to
the Anuradha Bhasin case wherein it had held that under the usual
course, every order passed under Rule 2(2) of the Telecom Suspension Rules, which restricts the internet,
is to be placed before a Review Committee
which provides for adequate procedural and
substantive safeguards to ensure that the imposed restrictions are narrowly tailored. Since, the issues pertaining to
the national security involved in this case affected the State as well as the
nation, therefore, the court held that it would be inappropriate to redress
this issue by means of a Review Committee under the Temporary Suspension
of Telecom Services (Public Emergency or Public Safety) Rules, and that, as
Special Committee was required, which would be competent enough to address all
such issues pertaining to national security and to determine the continuation
of such restrictions.
Question of Law
Whether
there is any existence of a nexus between the restriction of the internet speed
and national security. It was basically to determine the intention and the
objective sought to achieve by the government while passing such an order.
Held
Addressing the third issue at hand, the court held that the
authorities have initiated certain steps towards the easing of internet
restrictions with respect to the ongoing pandemic and an all – India lockdown. This
assertion of the bench was supported on the basis of the steps initiated by the
government which have been mentioned in para 20 (pg.15) of the
judgement. As far as the question of
forming a nexus between the
restriction of the internet speed and national security is concerned, the
Respondent No.1 presented various statistics, data and reports in front of the
bench, according to which the bench did consider that these steps were
initiated by the government cater to the anti-terrorist initiatives of the
security forces. However, as mentioned earlier, some reforms in the
implementation of enforcement of such restrictions would create a balance
between the rights and liberties of the residents and the national security
concerns.
Question of law
Whether
it was possible for the government to consider restricting the internet
services in certain areas and providing the benefits of 3G/4G internet in some
specified areas on a trial basis.
Held
The
bench answered the last issue pertaining to the possibility for the government
to consider restricting the internet services in certain areas and providing
the benefits of 3G/4G internet in some specified areas on a trial basis, by
directing the Special Committee constituted while dealing with the second
issue, to investigate into such contentions of the government. Furthermore, the
court also directed this Special Committee to examine the appropriateness of the alternatives suggested by the
Petitioners with regards to limiting such 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.
Also, all the relevant details regarding the membership of this
committee and some excerpts of the statistical data and reports analysed by the
courts, has been provided in the judgement itself.
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