“Fundamental rights of citizens need to be balanced with national security concerns, when the situation so demands.”

– N.V. Ramana

The Author would like to make some constructive criticism of the Judgement of the Hon’ble Supreme court of India in the case of Foundation of Media Professionals v. Union of India & Anr, popularly known as the 4G case.

About the Case:

This case is with respect to the blanket ban on the usage of 4G/3G internet services across the erstwhile state of Jammu & Kashmir and the alleged violation of the fundamental right to education, health and business of the people of the region.

The Petitioners contended that the non-allowance of 3G and 4G net services across the Union territory has violated the fundamental right to education (guaranteed under Article 21A of the Constitution) of the students and other educational professionals in the region by making online learning (which includes: online classes, webinars, etc) non-accessible for them.  Regarding the argument on the violation of Right to Education, Senior Advocate Salman Khurshid substantiated that the “Private schools are under government directions to provide education via video-conferencing. We have obligation under Right to Education Act to provide education”[1]. The limitation of the net speed had a widespread impact on the right to health and business as well (which are protected under Article 19 and 21 of the Constitution). The Petitioner pleaded that in the midst of a national lockdown and the ongoing Covid-19 pandemic in the entire country, the people of J&K are being deprived of the information and awareness regarding the same over the internet[2].

The respondents, on the other hand, pleaded that the net speed restrictions were in the interest of the people of the region since there have been multiple terror incidents in the Union Territory of J&K since August 5, 2020 (the day when the state’s special status under Article 370 of the Constitution was scraped[3]) and nevertheless the region had a history of terrorism-related activities, cross border terrorism, etc. Moreover, the Government said that the terror organisations will be using the high net speeds to carry out terror attacks and thus destabilise the region. The Respondents also placed before the court certain report which highlighted the fact that there was a threat of a cross border cyber-terrorist attack in the region[4]. Regarding the issue of the alleged violation of the right to health and education, the respondents claimed that there were awareness drives being carried out against the outbreak of Covifd-19 in the state through the wired net, radio, television, etc, and there were the distribution of pamphlets for awareness against the Pandemic. Moreover, the government has also distributed books and were carrying out several educational programs through different mediums other than the internet[5].

The Hon’ble Supreme Court Bench consisting of Reddy J. And N.V. Ramana J. considered the fact that there must be a “balance between national security and human rights of the general public”. It accepted the contention of both the respondents and petitioners. The Hon’ble Court acknowledged the fact that the Government of the region is gradually relaxing the restrictions in the region.  The Court also highlighted certain guidelines which were delivered by the Court in the case of Anuradha Bhasin v. Union of India. At last the Court in its order stated that a committee which included the Home Secretary (Ministry of Home Affairs, Govt. of India), Secretary Dept of communication, Govt of India and the Chief Secretary, Union Territory of J&K will be created for the review the ongoing restrictions imposed in the region.

Author’s Thought:

It should be mentioned here that the Kashmir valley does have a history of terrorism associated with it since 1947. The author would like to bring the reader’s attention to the words said by the then ruler of the Kashmir valley, Hari Singh. He predicted that there will be an attempt to take control of the Kashmir valley by either side of the border through the application of force[6]. It did happen and there was an armed invasion in the valley from the Islamic Republic of Pakistan supported by the state itself. It was the very act which sowed the seeds of terrorism in the valley.

Since the independence of India, the Kashmir issue has been a constant cause of worry for both the countries on either side. In fact, there have been three wars fought between Pakistan and India on the issue of Kashmir[7]. Since then, times have changed and the law enforcement agencies have taken up new methods of tackling insurgencies in the Jammu & Kashmir, one of them being the ban on the usage of the internet. One of the events which saw a widespread imposition of Net Ban and communication restrictions in the valley was in the year 2016 after the killing Hizbul Mujahidin commander Burhan Wani. Multiple instances of terrorist activities and unrests have led the valley through a number of restrictions, but the restrictions imposed post the abrogation of the special status is more stringent and harsh than ever[8].

Firstly, the point which needs to be considered is, under which laws or statues were these restrictions imposed in the region. The communications blockade was imposed under the Temporary Suspension of Telecom Services Rules[9], by the use of which the government at the state or the Union can suspend telecom services when there is a public emergency or a threat to public peace and tranquillity[10]. The other restrictions were imposed by section 144 of CrPC[11], which gives the law enforcement agencies “power to issue order in urgent cases of nuisance or apprehended danger”. Regarding the imposition of the restrictions, it has been held in the case of Anuradha Bhasin that the restrictions imposed under S.144 and the Suspension Rules has to be reviewed on time to time basis[12]. Moreover, the restrictions have to be reasonable and cannot be for an indefinite period of time[13].

The author would like to quote Senior Advocate Huzefa Ahmadi, who was arguing on behalf of the petitioners. He argued that the terror incidents which the respondents referred happened even when there was no internet at all i.e. the vast period after August 5, 2020. Not only that the earned advocate said on record that: “even Arogya Setu app cannot be downloaded and operated by people“, which we all know that is an essential app amidst this Pandemic[14]. The Court seems to completely ignore this valid argument made by the learned counsel. As the respondents argued that there have been multiple terror incidents post-August 5, but we also need to remember the fact that there was a blanket ban on the usage of the net, telecom services, etc for a considerable period of time post-August 5,2020.

Now the third point which the author would like to corroborate is: Does the act of delegating a judicial responsibility to Executive, an abdication of the Judicial Responsibility[15]? The final order, in this case, was that there will be a committee consisting the executive officials who will review the present restrictions in the net speed. We should remember that the restrictions were imposed by the executive and as learned advocate Gautam Bhatia says: “The executive will decide whether the executive has violated the FR”[16]. In the language of Article 32 of the Constitution, the petitioner has the fundamental right to Judicial Remedies and it is unacceptable that the Supreme Court is delegating its grievance redressal power to the one against whom there is a grievance[17].

Conclusion:

“Examined more closely, however, this is a question of access rather than speed”, the Speed which the rest of India has access to and the people of the valley are deprived of. In the present case we see that as the rest of India is enjoying uninterrupted 4G net services, the people of Kashmir are being deprived of the same since August 5, 2020. The deprivations are in the form of right to basic healthcare, education, etc. Moreover, we see that the aggrieved people of the region have to stay at the mercy of the executive bosses who will decide on the net speed restrictions. The author hopes that the situation in the valley improves and the people of Kashmir get to live with dignity as the rest of India.

[1] Wire Staff,‘SC Refrains From Restoring 4G Services in J&K, Sets Up Special Committee’, ( The Wire, May 11 2020), <https://thewire.in/law/supreme-court-jammu-kashmir-4g-internet-special-committee> accessed on June 8 2020.

[2] Foundation of Media Professionals v. Union Territory of J&K and Anr, 2020 SCC 453.

[3]  Abrogation of article 370, (PRS India August 5 2020), < https://www.prsindia.org/media/media-updates/budget-session-17-ls-day-36-aug-5-2019>, Accessed on June 8 2020.

[4] Nayanima Basu and Snehesh Alex Philip, “How Pakistan ‘deep state’ is using corona virus cover to fuel terrorism in Kashmir”, ( The PRINT May 9 2020), <https://theprint.in/defence/how-pakistan-deep-state-is-using-coronavirus-cover-to-fuel-terrorism-in-kashmir/417857/ >, Accessed on June 8 2020.

 Report of “THE PRINT”, https://theprint.in/defence/how-pakistan-deep-state-is-using-coronavirus-cover-to-fuel-terrorism-in-kashmir/417857/

[5] Foundation of Media Professionals v. Union Territory of J&K and Anr, 2020 SCC 453.

[6] Ramchandra Guha, India After Gandhi : The History of world largest Democracy.

[7] Ramchandra Guha, India After Gandhi: The History of world largest Democracy.

[8] Hindustan Times Correspondent, “39 days after lockdown, restrictions lifted from Jammu and Kashmir”, (Hindustan Times September 13 2020), <https://www.hindustantimes.com/india-news/39-days-after-lockdown-restrictions-lifted-from-entire-jammu-and-kashmir/story-OC8ik4VC68z6jcYMbqIj1L.html >,

Accessed on June 8,2020.

[9] Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

[10] Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

[11]Code of Criminal Procedure ,1973, §144,.

[12] Anuradha Bhasin v. Union of India, 2020 SC 25.

[13] Anuradha Bhasin v. Union of India, 2020 SC 25.

[14] Debayan Roy, “Supreme Court reserves judgment in plea to restore 4G Internet in Jammu & Kashmir”, ( Bar & Bench May 4 2020), < https://www.barandbench.com/news/litigation/supreme-court-reserves-judgment-in-plea-to-restore-4g-internet-in-jammu-kashmir >, Accessed on June 8 2020.

[15] Wire Staff,‘SC Refrains From Restoring 4G Services in J&K, Sets Up Special Committee’, ( The Wire,May 11 2020), <https://thewire.in/law/supreme-court-jammu-kashmir-4g-internet-special-committee> accessed on June 8 2020.

[16] Gautam Bhatia, ‘The Supreme Court’s 4G Internet Order: Evasion by Abnegation’, (Indian Constitutional Law and Philosophy, June 6 2020),< https://indconlawphil.wordpress.com/2020/05/11/the-supreme-courts-4g-internet-order-evasion-by-abnegation/ > accessed on June 8, 2020.

[17] Gautam Bhatia, ‘The Supreme Court’s 4G Internet Order: Evasion by Abnegation’,(Indian Constitutional Law and Philosophy, June 6 2020),< https://indconlawphil.wordpress.com/2020/05/11/the-supreme-courts-4g-internet-order-evasion-by-abnegation/ > accessed on June 8, 2020.

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ABOUT THE AUTHOR

Malyaban Sen

Malyaban Sen is a third-year student of National University of Juridical Sciences, Kolkata.