The Supreme Court today heard a batch of pleas filed by the Tamil Nadu Government challenging a Madras High Court decision to quash a state quota law that provided 10.5% special reservation to Vanniyars, a most backward community.

A three-judge bench of Justices L. Nageswara Rao, B.R. Gavai, and B.V. Nagarathna issued an interim order indicating that while no appointments will be made according to the quota, existing appointments will not be disrupted. It directed Varun Chopra, D. Kumaran and Parthiban to prepare a compilation of all the pleadings including a written note of submissions and circulate it by February 10, 2022.

In view of the importance and implication of the matters, the court concluded that the interim order passed by the Madras High Court on August 25, 2021 shall continue. In addition, it was directed that no admissions and appointments shall be made till February 15, the date on which it is listed for the next hearing.

The bench was in favour of devising an interim arrangement and hearing the matter at length in February 2022 rather than staying the matter. It was submitted that 75,000 students have been admitted in accordance with the new legislation. Senior Advocate Nagamuthu pointed out that no admission has been made in agriculture, engineering. The admissions have taken place only arts colleges. 

Senior Advocate Gopal Sankaranarayanan submitted that the government has not taken additional steps after the impugned judgment. Furthermore, State has not filed appeals against all the parties. Therefore they should not take shelter from the court’s order.

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On the another hand, Senior Advocate Dushyant Dave submitted that the new act only sub-classifies 69% of the Vanniyar population. Moreover, the landmark judgement in Indira Sawhney recognized that sub-division is different.  Therefore, the High Court should not have interfered with the decision.

On November 1, 2021, the Madras High Court ruled that the statute, Tamil Nadu Special Reservation of Seats in Educational Institutions including Private Educational Institutions and Appointments or Posts in the services under the State within the Reservation for the Most Backward Classes and Denotified Communities Act, 2021, approved by the Tamil Nadu legislature allowing 10.5 per cent internal reservation to the Vanniakula Kshatriya community within the 20% reserved for the Most Backward Classes (MBCs) in education and public employment, was unconstitutional.

According to the law, it was enacted to address the demand of Vanniyars, an MBC caste, based on assertions that they are the dominant community but are unable to compete with the other MBC/DNC communities.

At least 35 writ petitions have been filed at the High Court’s principal seat as well as its Madurai Bench challenging the law’s legitimacy and was allowed by Justices M. Duraiswamy and K. Murali Shankar who concluded that the statute was passed without any measurable data on the socio-educational condition of Vanniyars in the services, and that there were no objective criteria for sub-classifying Vanniyars.

“The enactment has been passed by the State without any quantifiable data on population, socio-educational status and representation of the backward classes in the services and the sub-classification done by virtue of the impugned Act solely based on population data, in the absence of any objective criteria, is illegal in the eye of law and in violation of the Constitution of India,”

-said the High Court.

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The government had contended that the statute under question categorises other MBCs and denotified communities (DNCs) and offers 7 per cent and 2.5 per cent reservations for them as well. Therefore the question of preferential treatment should not arise.

The petitioners, on the other hand, had argued that, following the insertion of the 102nd amendment to the Constitution of India, the State Government no longer has the authority to identify or classify any community as backward; instead, it is the sole domain of Parliament, and thus the Act violates Articles 338-B and 342-A of the Constitution of India.

Furthermore, the National Commission for Backward Classes, which is a constitutional body established under Article 333-B of the Indian Constitution and is under the Ministry of Social Justice and Empowerment, will be the competent authority to notify a caste. The President may, by order, appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes and the difficulties under which they work and to make recommendations as to the steps that the Union or any State should take to remove such difficulties, according to Article 340 of the Indian Constitution.

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• On the Margins

The Supreme Court on Monday expressed its concern that the number of children identified by the states appeared to be quite low and even the process of identification, which is the first stage of the process of rehabilitation, has not yet been completed.

The bench comprising Justice L. Nageswara Rao and Justice B.R. Gavai, during the hearing of a suo motu matter regarding the plight of the Children in Street Situation (“CiSS”) across the country, directed the State Governments and the Union Territories to complete the identification process without any delay.

Additional Solicitor General K.M. Natraj requested the Court for some more time as some states are not cooperating as they require time to update information.

Justice Nageswara Rao observed,

”The numbers which are shown on the basis of the information uploaded on the website appear to be very less. Only 3,655? Last time we were told that there are 70-80,000 children in Delhi alone. So, there are lakhs of them. Reporting appears to be incomplete. Stage 1 is identification and information. We are still stuck at it. These are issues which cannot wait.”

Therefore, he directed the Learned ASG to remind the states to cooperate and upload the information.

Gaurav Agrawal, also the amicus curiae in this case, submitted a note in which he mentioned that the Delhi government has come up with a scheme regarding the Children in Street Situation (CISS)  issue.

Justice Nageswara Rao observed that if the National Commission for Protection of Child Rights (NCPCR)  can on account of this scheme and other aspects come up with some comprehensive guidelines that also would serve the purpose.

The amicus submitted that loading of data and production of information before the child welfare committees is the first step. After that, how they propose to address this issue for the 3 different categories  of children as under the Juvenile Justice Act, 2015 also may be considered by the state and they may come up with their own schemes as per their financial situation and other considerations for the rescue and rehabilitation of the CISS.

Advocate Shobha Gupta, appearing on behalf of WWI (We the Women of India), submitted,

”The initial exercise was undertaken for the data to be put up on the portal on the children who have either become orphan, are abandoned or surrendered. This was regarding the children on the street. My request is that parallel to this exercise when they are collecting data and putting it on the portal if they start doing the further exercise which is required under the juvenile justice act, which states not only what my lords are directing under the identification, but to see that if their parents or relations are not available then they should be relegated for the purpose of adoption. Now enough data is available in this matter, let us reach to step 3 and 4 also where a number of registered parents are waiting in the list who can give them shelter and home.”

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Justice Nageshwar Rao observed that from the available data it can be seen that many children are on the streets in the daytime and go back in the evening to their parents. So, adoption might not be relevant for them. We need to find a way to remove them from the streets by providing them facilities, etc. For example, the Delhi government has said that they would provide them shelters, etc, and look at those schemes.

The NCPCR has told the Supreme Court that as per the data uploaded on the Baal Swaraj Portal- CoVID care from April 2020 onwards up to December 7, 2021, 9855 children are orphaned, 1,32,113 children have lost either parent and 508 children are abandoned. The NCPCR has stated that in its affidavit dated October 10, 2021, NCPCR had analyzed data of children of 19 States and UT’s that was available on the Baal Swaraj Portal and where the child details/information had been uploaded.

While considering arguments and the affidavit filed by NCPCR, the Apex Court noted that the commission conducted meetings with the concerned authorities for implementation of SOP 2.0 on  02.12.2021, 3.12.2021 and 06.12.2021, 28 states and UTs had participated and have provided information regarding the identification of CISS.

Data provided by the state governments regarding the rehabilitation of CISS has been placed on record. Looking at the number of CISS who have been identified, the Bench noted that the process of identification is at a slow pace.

It was brought to the notice of the court when the matter was heard on 15.11.2021 that ”Save the Children” mapped 2 lakh children in 10 districts of Uttar Pradesh, Maharashtra, West Bengal, and Delhi. There might be lakhs of children in the remaining parts of the country who need to be rescued and rehabilitated. “That Stage 1 is a crucial stage, the state governments, and the Union territories are directed to take immediate action for identifying CISS without any delay.”

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The required information is to be uploaded on the portal of NCPCR  and ”Bal Swaraj” (CISS).

“The concerned authorities in the state governments and UTs need not wait for any further instruction of the NCPCR  or the directions of this Court for proceeding with the collection of information regarding the social background of the children, identification of benefits under the individual care plan, inquiries to be conducted by the child welfare committees under the juvenile justice care and protection act 2015, linking the schemes/ benefits to the children of the families or guardians,”

-clarified the Court.

“NCPCR is directed to file a status report of the information received from the state governments/UTs on Bal Swaraj CISS portal within a period of 4 weeks from today. In the meanwhile, the district magistrates shall upload the information not restricted to stage 1 but also information relating to other stages. The State governments/ UTs shall file a status report about steps taken for rescuing and rehabilitation of CISS within a period of 3 weeks from today,”

-ordered the Bench.

The Court posted the matter on January 17, 2022  for further hearing. Earlier, the Apex Court had directed all District Magistrates in states and UTs to take steps for care and protection of children in street situations prepared by the NCPCR in 2020.

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The Supreme Court has dismissed the plea as withdrawn seeking Directions to waive off the cost of Rs 50K imposed by the Apex Court on the petition filed by Syed Waseem Rizvi against some verses in the Holy Quran alleging those verses violates the law of land, promote extremism and terrorism and pose a serious threat to the sovereignty, unity & integrity of the Country.

Today the matter was listed before the bench of Justices Rohinton Fali Nariman, KM Joseph, and BR Gavai. Petitioner’s counsel A Deb Kumar prayed for withdrawal of his application for waving off the cost. 

The bench asked when he will pay the fine? 

The counsel informed his client has filed a review against the said order and also discharged him from the case. 

Following which the Court has dismissed the application. 

On April 12, 2021, a three-judge bench of Justices Rohinton Fali Nariman, B.R. Gavai & Hrishikesh Roy had dismissed plea and also imposed a hefty fine of Rs 50k on the petitioner while terming PIL as “absolutely frivolous”.

The review petition filed on May 11 has not yet been listed

Through his PIL, the petitioner Rizvi had claimed that these verses were added to the holy book of Muslims later. “These verses were added to the Quran, by the first three Caliphs, to aid the expansion of Islam by war and these verses promoted violence”, it alleged.

According to the petitioner, “terrorists use these verses to fuel jihad”. “these verses are used to mislead the young Muslims generation, provoking them to become radicals and terrorists resulting in the massacre of millions of innocents,” he further alleged. 

In the review petition, Rizvi has contended that SC dismissed the petition without taking into consideration the very important factum that “radicalization is increasing in our country with a very fast pace and we are heading towards another partition of the country in the near future”.

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“The questions raised by the Reviewer/Petitioner in his Public Interest Petition are very important and significant for the safety, security, peace, harmony, unity, integrity and sovereignty of the country and deserve to be considered in detail in the open Court…this Hon’ble court over-looked the issue relating to national security and without considering the arguments advanced on behalf of the Petitioner”, the review petition contends

The petition says: ”Not only this, the reviewer/petitioner is receiving life-threatening calls on day to day basis for the last over three months from the extremist/fundamentalist elements, who have no respect for law and openly use derogatory and filthy language against the Reviewer/Petitioner and threaten to kill him by cutting his throat”.

Another petition landed before the Supreme Court on Wednesday on the trouble and killings that happened in West Bengal after the Assembly election results were declared on May 2.

Yesterday, a petition before the Vacation Bench of Justices Vineet Saran and BR Gavai had demanded an SIT or a CBI probe into the deaths of alleged BJP workers. The Court has issued notice on that.

Today’s petition, a similar one, seeks direction to the State of West Bengal to hand over the investigation and the case concerning the killings of suspected BJP workers/ supporters and the destruction of their properties by alleged goons of Trinamool Congress.

This petition, too, demands an SIT, to be set up by the apex court, with which the investigation should rest.

This petition is objectively directed towards President’s rule. The petitioner, Mumbai-based lawyer Ghanshyam Upadhyay, sought directions to the State to disassociate itself from an investigation of such cases. The petitioner also prayed for issuance of direction to the Governor, State of West Bengal, to submit his report to the top court under Article 356 of the Constitution of India so as to enable the Court to ascertain as to whether there is complete failure and breakdown of constitutional machinery in the Sate. The plea sought that if the top court is satisfied about a breakdown of law and order in the state, then it should declare so.

The petitioner also prayed for direction to the Union of India to invoke Article 355 of the Constitution of India for the State of West Bengal and thereby to give advice to the President to issue a proclamation for the State of West Bengal under Article 356(1) of the Constitution of India.

The petition relied on media reports to state that following the declaration of results of the assembly elections “massacre/killings of suspected BJP workers/supporters and destruction of their houses/properties” took place. The plea claimed that “the remaining workers/supporters of BJP and their families have been left with no other option than to leave their houses/residences and hide themselves (sic) to save their lives and limbs.”

The plea again relied on media reports to claim that “Media reports have further revealed that the incidents of killing of BJP workers and destruction of their properties by the people of TMC are still going on with complete impunity and the law enforcing agencies in the State have become silent spectators on account of tacit understanding with the ruling party i.e. TMC and its head Mamta (sic) Banerjee.”

The plea continued: “In a nutshell, from media reports, it is clearly discernible that there is subversion of Constitution by State Government while professing to work under the Constitution and the State ruled by the Respondent No.3/ Mamta (sic) Banerjee and her political party have been indulging in creating disunity and disaffection among the people of the State to disintegrate the democratic social fabric and in the process, have been resorting to subvert its basic feature/ democracy.”

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The plea, interestingly, also said: “People in power who appear to have gone senile due to intoxication of powers (sic), have perhaps forgotten that there is something called ‘Supreme Court’ in our country which being highest constitutional court of the country will not remain silent spectator of such massacre of innocent persons by the goons of a political party…”

Source: ILNS

The Supreme Court on Tuesday declined to hear a petition filed by a man accused in FIR for alleged offences under Sections 147, 148, 323, 504, 506, 307 of the Indian Penal Code, seeking pre-arrest bail as the same was refused by the Allahabad High Court. 

A bench of Justices Vineet Saran and B.R. Gavai however has given liberty to the petitioner to withdraw the application and file a review petition before the Allahabad HC. 

The advocate for the appellant submitted that this is the case where two persons have filed pre-arrest bail application before HC in which one accused had been granted anticipatory bail, whereas the applicant wasn’t granted it. He submitted that there were 6 accused and all are out on bail, to which the division bench replied that the reason behind the fact that present appellant has not been granted bail is he has 21 criminal cases pending against him.

The bench accepted the prayer of the advocate for the appellant to withdraw the application. The court stated, “The petitioner maybe permitted to withdraw the petition and grant liberty to approach the HC by filing a review petition. The petition is dismissed and withdrawn.”

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The allegation against the applicant was that he along with the co-accused have caused gunshot injury to the injured. The applicants submitted that no bodily injuries were found. Only superficial injuries were found on the non-vital parts of the injured.

As a debate raged over conducting the exams during the pandemic, it reached the apex court which said that if they were postponed, the careers of students would be at peril. Finally, JEE Main was held on September 1

By Srishti Ojha

Despite all the brouhaha over the NEET-JEE exams being held during Covid-19 times, matters have moved on smoothly. The Joint Entrance Examination (JEE) Main for admission to engineering institutes was conducted on September 1 with precautions, while the National Eligibility Cum Entrance Test (NEET) 2020 for admission to medical colleges is scheduled for September 13. Both the exams were postponed twice and are being held despite protests and opposition by students and politicians across the country.

Six cabinet ministers from Opposition ruled states had filed a review petition in the Supreme Court on August 28 challenging the decision to dismiss pleas seeking postponement of the NEET-JEE exams in the wake of Covid-19. The August 17 order was issued by Justices Arun Mishra, BR Gavai and Krishna Murari while hearing a plea filed by 11 students from 11 states, who submitted that the decision to hold these exams during Covid-19 was utterly arbitrary, whimsical and violative of their fundamental right to life. The plea said that lakhs of young students appearing in these exams when Covid-19 cases are increasing in India at an alarming rate would put their lives at utmost risk and danger of disease and death. The bench had disagreed and said if exams were postponed, the careers of students would be at peril and they would lose an academic year. The Court said that life cannot be stopped and we have to move forward with all precautions.

In compliance with the apex court’s order, the centre clarified on August 25 that NEET and JEE would take place as scheduled in September. The National Testing Agency issued standard operating procedures with guidelines for conducting the exams, including full sanitisation of exam centres, usage of masks at all times, use of hand sanitisers, gloves, etc.

Following the Court’s order, a review petition was filed on August 28 by West Bengal Labour and Law Minister Moloy Ghatak, Jharkhand Finance Minister Dr Rameshwar Oraon, Rajasthan Health and Family Welfare Minister Dr Raghu Sharma, Chhattisgarh Food Minister Amarjeet Bhagat, Punjab Health Minister Balbir Singh Sidhu, and Maharashtra Education Minister Uday R Samant. They contended that the decision to hold exams didn’t secure the safety, security and right to life of the candidates. According to them, around 25 lakh students would appear for the two exams at a time when India had recorded over 3.31 million Covid cases.

While JEE is to be conducted in over 660 exam centres with roughly 1,443 students writing it per centre, the NEET exam will be conducted in 3,843 centres with around 415 students in each of them. Even though the centre had enough time from April to September 2020 to ensure safe and successful conduct of the examinations, it failed due to its inaction, confusion, lethargy and inertia, they said. The Union government has suddenly woken up to the fact that their inertia would cost lakhs of students their academic year and therefore, haphazardly and hurriedly, fixed the dates of the examinations, they said. This remedy would prove to be worse than the disease itself, they warned.

The review petition, which has still not been heard, states that the process of reaching the examination centre itself can be a major source of contracting the infection, and it would be practically impossible to properly implement social distancing norms due to lesser number of centres. It said while the Supreme Court’s advice that “ultimately life has to go on” may have very sound philosophical underpinnings, it cannot be a substitute for valid legal reasoning and logical analysis of the various aspects involved in the conduct of the NEET, UG and JEE exams. The reasoning of students losing a year would be tantamount to putting the cart before the horse, as health, safety and security of students and their families should be balanced with not losing the current academic year, they said.

Letter petitions were also sent by two students to Chief Justice of India (CJI) SA Bobde calling the government’s decision a clear violation of Article 21 of the Constitution. They sought postponement of the exams till normalcy was restored. A minor JEE aspirant also wrote to the CJI, urging postponement of both exams by a month or two to help avoid floods induced by the monsoons and give time to the states to be prepared to handle the students.

While students all over the country took to social media to express their disapproval of the government’s decision, the ongoing debate also saw the involvement of political leaders. Union Education Minister Ramesh Pokhriyal defended the centre’s decision during an interview, saying that it would save the academic year of students and there was a need to rise above political considerations in their interest. He said there was a silent majority of students who had sent him mails asking for the exams to be held. Rajasthan’s ex-Deputy Chief Minister Sachin Pilot addressed a protest in Jaipur against the centre’s decision and while expressing concern over the daily rise in Covid cases, demanded that sensitivity be shown and the decision be reconsidered. Rajya Sabha MP Dr Subramanian Swamy constantly asked the centre to postpone the JEE and NEET exams, and informed students through Twitter that he had dialled the prime minister’s residence as a last resort to help the students, but couldn’t get through. West Bengal Chief Minister Mamata Banerjee said that the centre’s decision to conduct the exams during the pandemic would lead to students risking their lives. MP Vivek Tankha tweeted that the decision to hold these exams is state-centric and six states using their power under the Disaster Management Act to postpone the exams was fallacious; it must be nationally postponed.

A NEET aspirant from Delhi, Gunjan Rai, who dropped a year to prepare for the exam told India Legal that she supports the centre’s decision as people who had taken year drops could not afford to waste another year. Also, now that they have studied so much and had their mind set to give the exam, postponing would only affect their performance.

DR Sakshi Ojha, Assistant Professor at Gandhi Medical College, Bhopal, told India Legal that as attempts are being made to resume normalcy, these exams shouldn’t be postponed as that may lead to loss of an entire semester and it would be problematic for upcoming batches too. She suggested that different rooms for Covid positive students and symptomatic ones should be used. 

Advocate Sagar Shahani of Bombay High Court told India Legal that while the Supreme Court’s ruling intends to be noble, it did not highlight the practical difficulties that would be faced by students, especially those from rural areas.

Dr Sneha Gupta, from RNT Medical College, Udaipur, said:

“Considering the facts behind the SC’s decision and my own experience of appearing in the NEET exam, I believe in the decision. There are students who are serious, have studied up to 17 hours a day, cycled kilometres to reach coaching centres, have no one to earn in their families and can’t pay fat fees of coaching institutes. My message to students is to be responsible citizens and follow NTA’s guidelines.”

Dr Prateek Gupta from SMS Medical College, Jaipur, too had the same view and said:

“We have seen enough disasters in the light of Covid. Let us not create another disaster and wreak havoc on the lives of students unnecessarily by postponing exams when it can be conducted by placing adequate safety measures. Covid is here to stay.”

Ultimately, JEE Main was held on September 1 amid strict precautions and social distancing norms. At centres, there were different entry and exit points for candidates, sanitisers at gates and inside exam halls, distribution of masks and maintaining of social distancing. Each candidate was offered a three-ply mask at the time of entry and had to wear it at all times. All seats and work stations were also disinfected. Many steps were taken by state governments also to ensure the conduct of exams. Madhya Pradesh and Chhattisgarh, for example, assured provision of transport and in Mumbai, Western Railways ran 46 additional special suburban services only for NEET-JEE aspirants.

The furore over NEET-JEE exams is unusual when other exams such as CLAT, IIM and DU entrance will be conducted offline too. Even though NEET-JEE exams have comparatively more candidates appearing for it, the ramifications of the pandemic remain the same for other students as well. 

With Covid here to stay, life cannot be stopped.

Lead Picture: UNI

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