FOUNDATION 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
Bench: N.V. Ramana, R. Subhash Reddy, B.R. Gavai, JJ.
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?
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
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.
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.
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.