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The Centre and SC’s Narrow Path to 4G in J&K

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By Sujit Bhar

Beginning this Independence Day, the country should see a slow deregulation of high-speed internet services across the Union Territory of J&K. This is what the centre told the Supreme Court during a contempt hearing in this case. It will be exactly a year after the abrogation of Article 370 and the suspension of such services in the Valley. It will also be exactly 25 years since the advent of internet connectivity in the country.

The initial phase of the opening up of 4G services would involve just a district each in J&K and would be done on a trial basis for two months before a final decision is taken. Hence, these are baby steps in trying to re-learn how to walk the cyberspace. But they are positive steps and if the new Union Territory gets back its statehood, a decision like this would go a long way in firmly establishing the rule of law.

This positive move has not been an easy one. Apart from the fact that it had to negotiate a minefield of security iss­ues that are aided and abetted by Pakistan, the government was also trying to quickly accommodate the Supreme Court’s opinion within its political narrative.

On January 10, the top court’s bench of Justices NV Ramana, Subhash Reddy and BR Gavai had held that the suspension/restriction of internet services should not be done in a disproportionate way. When humanitarian appeals reached the top court, the bench tried to look into the permissible degree and scope of restrictions, which it said had to be “proportionate to the situation that the Government was trying to address through such measures”. This being a rather subjective approach, the Court had directed a review committee to undertake periodic reviews of the situation.

Some restrictions were lifted and 2G was accessible, but 4G remained out of reach. That was when things got worse. From March, the Covid-19 pandemic started devastating lives and livelihoods across the country and J&K was not spared. To point out just one anomaly, when PM Narendra Modi announced the launching of the contact tracing app Aarogya Setu—a novel and essential service—on April 2, it fell flat in the Valley in the absence of a 4G network to carry it. The alternative SMS-based tracking system has not worked. In the chaos, a batch of petitions landed before the Supreme Court, all seeking restoration of 4G internet, as humanitarian relief in the light of the Covid-19 pandemic.

Then on May 11, the same bench of the Supreme Court, dealing with the same case—Anuradha Bhasin vs Union of India and Ors—delivered its judgment. The bench refused to direct restoration, but instead of the review committee, it ordered the formation of a Special Committee to look into the grievances of the petitioners.

This may sound just an incremental change, but it was necessary to present the ground realities before the Court, even as it attempted to understand the hesitation of the government. A matter of national security has to be dealt with with kid gloves. The same was the case for the Union government. It realised that a pandemic needs immediate humanitarian intervention, and handling this within the serious security concerns in the area was a Herculean task. Mishandling would have a massive political fallout within the borders and do irreparable damage to India’s democratic image internationally.

Between a rock and a hard place

The news of the composition of the Special Committee was a relief to the Executive, stranded between a rock and a hard place. It was to comprise the Union home secretary, the communications secretary and the J&K chief secretary. Basically, it was an Executive-driven exercise. Its objective was to look into the suggestions of the petitioners to limit the restrictions to certain areas of the Union Territory and resume normal connectivity in other geographical areas.

The action taken would be an advisory from the Special Committee to the Union of India. In effect, the Court allowed the government to advise itself, but it was a well-thought-out strategy that allowed tweaking of the security parameters that the Court would not have been able to do. The administrative machinery, however, was dragging its feet on the Supreme Court directive. In a contempt petition—filed on June 9 by the Foundation for Media Professionals, an NGO—hearing on July 16, where the petitioner said that the centre and the J&K government had not complied with its order to constitute the special committee to explore the restoration of 4G in the Valley, the Court ordered that proof of compliance with its order is needed to be published in the public domain. The Court wanted a detailed affidavit on why the committee had not been constituted as per its May 11 directive.

The argument of senior advocate Huzefa Ahmadi, representing the NGO, was on the ball. He said that their representation and complaint to the government is not being responded to and since the orders aren’t being published, the same cannot be challenged before the Court.

He also said that this non-compliance resulted in medical facilities crashing in the Union Territory and children were unable to study due to slow internet speed. He said: “What entire country enjoys, only this state cannot. This directly infringes Article 21 (the right to life and liberty).

[Interestingly, former Chief Justice of India MN Venkatachaliah, had, in an interview (see box below) to Rajshri Rai, MD, India Legal, and Editor-in-Chief, APN News, made a similar comment. Talking about internet access, he had said: “Times have changed. Access to the internet is equated with the right to information, the right to knowledge.”]

That was when Solicitor General (SG) Tushar Mehta, arguing for the Union Territory, had informed the bench that a high-powered review committee had indeed been created to look into the 4G ban. He said that details of the committee and decisions will be placed on record before the Court.

Mehta’s statement was buttressed by Attorney General KK Venugopal, the centre’s counsel, who pointed out that no contempt was made out since the committee had already been formed and orders of suspension of the internet are issued after due application of mind.

He added that the minutes of the meeting will be placed in a sealed cover before the Court as they reveal the startling situation in J&K, details of terror attacks and local attacks.

The bench headed by Justice NV Ramana said: “If you have complied with the orders given in May, then it is needed to publish that in public domain.” The Court did not issue any formal notice on this.

Sensitive decisions like these aren’t supposed to be made from the heart, but with the application of mind and ground realities, as Venugopal pointed out. While the judges are bound by their constitutional obligations, the government has a little more on its hands, even if one discounts political motives.

National security and terrorism are issues that Modi has erected as the central point of India’s international diplomacy. Any mis-step at home would derail that. On the other hand, human rights also remains a major issue. How would one balance these with the centre’s security narrative?

The arguments

That could be found in several sessions of arguments. A more detailed breakdown of the arguments raised by the parties and Court’s response to them are as follows:

The petitioners’ viewpoint was that severely restricted mobile internet speed was hampering their rights to health, education, business and free speech. This was aggravated in the Covid-19 atmosphere and in the resultant lockdown. Neither was medical help nor information on it available through 2G network.

Then there was the other legal argument that the respondents were not following guidelines laid down by the Court in Anuradha Bhasin and the Telecom Suspension Rules. The general absence of a Review Committee (later constituted) to look into the legalities of the suspension of net services came up and there was also a shortfall on the centre’s side when it failed to explain the relationship between the internet speed restrictions and national security.

Mehta argued that fundamental rights had to be balanced against national security. In the present context, as insurgency and violence were being perpetuated through fake news, it was not possible to provide full internet services to the region, he said. The SG also tried to pacify the emotions of the petitioners by detailing measures taken to enable medical and educational services to reach the public.

The Court made it clear that fundamental rights need to be balanced with national security. In the case of J&K, this was more sensitive, it admitted.

Going back to Anuradha Bhasin, the Court noted that since August 5, 2019, (when the special status of J&K was revoked), around 108 terrorist-related incidents had taken place in J&K. That fact had not been contested by the petitioners.

Then there was the case of rising cyber terrorism, in respect to the “Green Book 2020” of the Pakistan military, which outlines its intention to intensify information warfare in Kashmir.

That allowed the Court to comment that incidents (of terror), resulting in the death of innocent civilians and security personnel could not be ignored. And in the internet, there was a “flow of information” that was restricted through restricted speed, to “restrict the flow of information” and “prevent the misuse of data by terrorists and their supporters” observed the Court.

The UN Study

In arriving at this off court, we can refer to the United Nations Office on Drugs and Crime (UNODC)-conducted study on “The use of the Internet for Terrorist purposes” in 2012. The study was extremely detailed and deduced certain areas of worry. There are details in the section “Means by which the Internet is utilised for terrorist purposes”. It said it had taken a “functional approach” while determining the classification of the means by which the internet is often “utilized to promote and support acts of terrorism. This approach has resulted in the identification of six sometimes overlapping categories: propaganda (including recruitment, radicalisation and incitement to terrorism); financing; training; planning (including through secret communication and open-source information); execution; and cyberattacks”.

Hence, the State has to be careful where and how it steps while in a danger zone. When the Galwan attack happened on June 15-16, resulting in the death of 20 Indian soldiers, another front of trouble had to be dealt with and any cyber activity had to be curtailed. There were certain secrets that the government just could not share with the general public, though much of that was shared with the Supreme Court bench. If the general perception of a hesitant Supreme Court was apparent, it precluded the possibility of more serious issues that have come up of late. One has to remember that one of the primary uses of the internet by terrorists is for the dissemination of propaganda. As we have seen from the past in WhatsApp messages creating chaos, this is also the way a terrorist recruiter would go about doing his job.

BOX

 “ACCESS TO INTERNET EQUAL TO RIGHT TO INFORMATION”

The importance of the internet and access to it was emphasised by former Chief Justice of India MN Venkatachaliah, who said: “Access to the internet is equated with the right to information, the right to knowledge…” He had said this to an almost prescient question posed by Rajshri Rai, MD, India Legal, and Editor-in-Chief, APN News, just before the pandemic spread, but within the drama that was unfolding in the access-starved Valley. It would be prudent to reproduce a section of that memorable interview:

Rajshri Rai: The new generation is very attached to the internet which has become the primary mode of knowledge transmission and interaction. However, the State has clamped down on the internet in troubled times. In this context, the Supreme Court recently held that access to the internet is a fundamental right.

J Venkatachaliah: We are now thinking of its ill-effects and potential for misuse. The internet is one of the greatest inventions mankind has seen, almost next to the railroad. If the question is how to protect children from its ill-effects, the answer lies in the fact that the internet is a protection against itself. There lies a way in which the internet can be manipulated to prevent unwanted information reaching children or vulnerable groups. AI is exciting. It is based on logic and logic is a friend of justice. Humanity has a lot to look forward to. Spirituality and human evolution are taking an upward course.

Rajshri Rai: Can you expand on the underpinnings of the judgment on internet access and its importance?

J Venkatachaliah: Times have changed. Access to the internet is equated with the right to information, the right to knowledge. It is an attribute of the human being or human personality. Internet access can be abused, but then everything can be abused.

Rajshri Rai: Social media has the potential for misuse. With current cyber laws, are we ready to regulate the internet?

J Venkatachaliah: No, we are not conscious of the magnitude of the problem or the ill-effect it can produce. Take a kitchen knife. It can cut vegetables and it can injure a human being. Science is like that. The nuclear bomb killed millions but when nuclear science was used for medicine or constructive purposes, it enhanced the quality of life. How to minimise bad effects and maximise good effects depends on the genius of the man.

Lead picture: UNI

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