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Since the abrogation of J&K’s special status on August 15, 2019, its people have been subject to multiple restrictions, including those regarding the internet. And now with the entire world crippled by Covid-19, the Union Territory is finding itself handicapped with yet another restriction—the speed of the internet has been restricted to 2G by the government. Petitions challenging this restriction and restoration of 4G have been filed before the Supreme Court and the High Court.

On May 4, the Supreme Court reserved its order on a petition filed by advocate Shadan Farasat to restore 4G services on behalf of Foundation for Media Professionals. It challenged the government order restricting internet speed, contending that it was in violation of Articles 14, 19, 21 and 21A of the Constitution. Another order was passed by the J&K administration on April 3 retaining these restrictions till April 15.

According to the petitioner, during this period of health crisis, the government was obliged to ensure access to the “digital infrastructure” that is required to make the right to health of citizens an effective reality. The residents of J&K, it said, were unable to benefit from initiatives like the health ministry’s Covid-19 dashboard and MyGovIndia’s WhatsApp chatbot which responds to queries and counters Covid myths with text, infographics and videos. They cannot access potentially life-saving information from these services, which is violative of their right to equality, right to freedom and right to life, the plea said.

Further, the petitioner stated that no access to 4G made it impossible for the residents to follow the government mandated “work from home” policy, especially for businesses in the IT and ITES sector, and educational institutions. Access to 4G is, therefore, crucial to implement the work from home policy promoted by the government.

Another PIL in the Supreme Court by Private Schools Association, Jammu and Kashmir, an association of more than 2,200 schools, also challenged the government’s orders on the ground that restriction of 4G data was an infringement of the right to education. The petition, filed through advocates Soayib Qureshi and Charu Ambwani, stated that data connectivity at the speed of 2G was not sufficient to circulate information, and restrictions on availability of good internet speed were unreasonable and unjustified.
The petitioner referred to the landmark decision in Anuradha Bhasin vs Union of India on January 20 where the right to internet was held to be part of fundamental rights and restriction on internet speed in this case amounted to suspending the internet for eternity. The petition came before a bench headed by Justice NV Ramana. Senior lawyers Salman Khurshid and Huzefa Ahmadi represented parties seeking restoration of 4G.

The apex court in Anuradha Bhasin, while dealing with the lockdown in J&K, stated that the importance of the internet cannot be ignored and wide circulation of information was important. The right to freedom of speech and expression was thus held to be a part of Article 19(1) under the Constitution, and any order for suspension of the internet should be subject to judicial review.

During the hearing, Ahmadi challenged the restrictions and stated that as only 2G connectivity was available, students in J&K were unable to access classes that schools were holding via a video-conferencing app. Section 144 was imposed there on March 1, after the outbreak of the pandemic and through subsequent orders, internet speed was restricted to 2G. Doctors too were facing difficulties in accessing information about the treatment of Covid and some 75 of them had made a representation to the government.
In response to Justice Ramana’s query about the government’s contention that there was a surge in terrorist activities, he stated that according to numbers, these activities were more in the 1990s when there was no internet and there was no study to show these had increased due to 4G. He added that the government was unable to show any direct nexus between the surge in terrorist activities and 4G. He suggested that the government remove the restrictions for a week, monitor the results and see if there was any link with terrorism.

Khurshid stated that private schools were given directions by the government to provide education through video-conferencing. There is an obligation under the right to education to provide this to students. Security concerns should be adhered to but data to check the impact of 4G on security should be made available by the government. Though the government had stated that there has been a weekly review of the situation, none of these review orders was made available in public. He also suggested that internet sites which were problematic could be blocked by the centre.

Advocate Soayib Qureshi cited the Anuradha Bhasin case and said that as government orders had repeatedly said that anti-national information was being disseminated through social media platforms, why couldn’t these be restricted instead of the internet. Ahmadi submitted that the Anuradha Bhasin judgment was not being followed, as according to it, orders must be reviewed within a week. He said no orders of the review committee were placed on record. He said that it was elementary knowledge that 2G couldn’t be used for video-conferencing and slow internet was a handicap for students. Students in J&K were competing with those in the rest of India and couldn’t access education like them, he said.

Attorney General KK Venugopal submitted that they were disputing the issue of violation of the fundamental right to education and not the facts. The orders passed specifically stated that restrictions on internet speed were required for national security and passed for protecting the lives of the population of J&K. Those tasked with protecting national security must be the sole judges of this, he said.
Justice Ramana said the purpose of the review committee was to see whether there was a need for review based on the material present. The government had passed orders every seven days. He asked: “Where is the review committee order? Order must indicate that review committee has considered it. Are you saying internet restriction orders have been passed after review?”

Responding to the Bench, Solicitor General Tushar Mehta stated that orders had been reviewed by the Committee. When Article 370 was abrogated, the government started with a complete lockdown, then opened up movement, then landlines, then 2G internet. He added that the orders were not mechanical and decisions were made according to officials at the ground level. He said that health services were working. There were other areas in the country where there was no internet or where only 2G was available, and still there was no information that someone had died of Covid-19 because they didn’t have internet access, he added.

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