SC tells panel to decide on J&K 4G restoration

The Supreme Court on Monday tasked a high-level committee of civil servants with deciding on the restoration of 4G mobile internet in the Union territory of Jammu and Kashmir (J&K), responding to a petition that argued the absence of high-speed connectivity had hindered access to the latest information and advisories about the coronavirus disease (Covid-19) pandemic.

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The committee, which will comprise the secretary of the ministry of home affairs, secretary of the ministry of communications and the chief secretary of J&K, was directed to examine the arguments made by the petitioner, Foundation for Media Professionals, which had cited the detrimental effect of restrictions on mobile internet during the pandemic.

“The Special Committee is directed to examine the contentions of, and the material placed by the petitioners as well as the respondents. The aforesaid Committee must also examine the appropriateness of the alternatives suggested by the petitioners, regarding limiting the 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,” the bench headed by justice NV Ramana said.

The petitioner had approached the top court challenging an order issued by the J&K administration on March 26 restricting the internet data to 2G and called for 4G services to be restored.

It claimed that patients, doctors, and the general public of J&K were unable to access the latest information, guidelines, advisories and restrictions related to Covid- 19 because of the restrictions.

“Severe restrictions on the speed of mobile internet services directly limits the right of the public to know the latest information about the spread of Covid-19, the measures being taken to address it, and the restrictions imposed on the general public,” the petition said.

The apex court bench, which also comprised justices R Subhash Reddy and BR Gavai, observed that while the court was aware of the difficulties faced by the citizens because of the restrictions, the court will have to balance the rights of citizens with considerations of national security cited by the government.

“We have already laid down that the fundamental rights of citizens need to be balanced with national security concerns, when the situation so demands.”

The court thus acknowledged that the restrictive orders do not provide any reasons warranting such restrictions in all the districts while making it clear that the militancy in J&K cannot be disregarded.

“These competing considerations needs to calibrated in terms of our judgment in the Anuradha Bhasin case,” the court said.

It was a reference to a judgment passed on January 10 in the Anuradha Bhasin case which held that access to information and the freedom of trade and commerce via the internet were fundamental rights under the Constitution of India. It had, therefore, ordered the central government and J&K administration to periodically review the orders passed to restrict internet services.

Towards this end, the court had ordered that orders restricting the internet should be placed before a review committee that provides for adequate procedural and substantive safeguards to ensure that the restrictions are not sweeping in nature.

Pursuant to the judgment, the J&K administration had passed various orders gradually lifting the restrictions on internet access in J&K. Orders were passed by the J&K authorities on March 4, 17 and 26 restricting internet speed for mobile data services to 2G.

It was the petitioner’s case that 2G services only permit the sending and receiving of messages (SMSs and MMSs) on the mobile phone and the web browsing speed using 2G was limited. The restriction of mobile internet speed is unreasonable and unconstitutional during the time of a pandemic and consequent lockdown, the petitioner argued.

“Various public health practitioners, medical professionals, and doctors have repeatedly expressed their concern about wasting precious time trying to download the latest studies, protocols, manuals and advisories on treatment and management of Covid-19. In some cases, doctors are not able to access these resources at all due to the internet speed being too slow to download heavy files,” the petition said.

The Union territory, in its response, had stated that the right to access internet was not a fundamental right and mobile internet speed had been restricted to 2G in the interests of national security.

Protection of the sovereignty and integrity of India and ensuring security of the country are good grounds to reduce the speed of the internet, it said, adding that the restrictions had been placed to ensure that the rights and interests of the citizens were not adversely affected, an affidavit by the J&K administration said.

The affidavit was also pointed out that mobile phone services had been restored and restrictions on internet access also progressively lifted. Initial access was restricted to whitelisted sites (approved websites) which had been widened progressively to lifting of all restrictions on social media.

“Fixed-line Internet connectivity with Mac-binding (can we explain), is available without any speed related restrictions,” the affidavit said.

Mac-binding may be explained as binding together hardware identification number and IP address so that change in any of the address will block access to the Internet.

Advicate Vrinda Grover said: “In today’s judgment, the Supreme Court has foregrounded the issue of balancing human rights against the interest of national security. This, to my mind, is a departure from the judicial approach in the Anuradha Bhasin judgment, where the Court had foregrounded rights as fundamental and located the power of the State to restrict rights in very limited and restricted situations, and subject to the tests of reasonableness, necessity and proportionality. A Special Committee comprising exclusively of persons from the Executive may tilt the balance further away from rights. Interestingly figures presented by the State show that terrorism and militancy continue even without 4G internet services. The question that confronts us then is for what kind of balancing are inalienable rights like right to healthcare, education and the right to access legal remedies being put in peril. This shift towards rights being subservient to national security and executive determination is worrisome.”