The Supreme Court said it takes with utmost seriousness the sensitive task of balancing national security and human rights and referred to its earlier Judgement in which it held that: the degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.

Hon'ble Supreme Court was called upon to address a very important but sensitive issue on national security and human rights, while ensuring that the national security and human rights can be reasonably and defensibly balanced, answered the same with greater responsibility and taking utmost seriousness.

Supreme Court, Vide its earlier Judgment dated 10.01.2020 in Anuradha Bhasin v. Union of India, (2020) SCC Online SC 25, gave certain directions regarding the imposition of restrictions on the Internet in a proportionate manner. The aforesaid case had, in addition to the procedural rules, supplemented the requirements of having timely review and the non-permanence of Internet shutdown orders.

Better Internet facilities are desirable during a global Pandemic and a National Lockdown, but the concerns of cross-border terrorism cannot be ignored, observed the Supreme Court while disposing of three Writ Petitions filed by Foundation For Media Professionals, Private Schools Association of J&K & Soayib Qureshi, seeking restoration of 4G Internet Services in Jammu & Kashmir.

While it might be desirable and convenient to have better internet in the present circumstances, wherein, there is a worldwide Pandemic and a National Lockdown. However, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored, the Court observed:
The Central Government had imposed a complete communications blackout in the erstwhile State of J&K in August 2019, right after abrogation of Article 370 of Constitution of India. Five months later in January 2020, on the basis of a Supreme Court order, the services were partially restored, only at 2G Speed for Mobile Users. Access was provided only to a selected white-listed sites, and Social Media was completely blocked.

The Supreme Court had observed that indefinite suspension of Internet is not permissible and restrictions on Internet have to follow the principles of proportionality under Article 19 (2) of Constitution of India.

The blockade on Social Media was lifted on March 4, 2020 but the Speed was retained as 2G for Mobile data.

After that, the J&K Administration passed several orders from time to time, retaining the Speed restrictions. As per the latest order passed on April 27, 2020 the restrictions have been extended till May 11.

Arguments By Counsel For The Writ Petitioners

Broadly, the arguments of the Petitioners premised on the ground that in the existing Covid-19 situation, when there is a National Lockdown, the orders restricting the Mobile Internet Speed to 2G in Union Territory of Jammu & Kashmir impacts their right to Health, Right to Education, Right to Business and Right to Freedom of Speech & Expression. Lack of 4G Net made Right to Internet illusory and dismantled the fundamental rights to access Health Services and Education, they contended.

It was further submitted that access to Internet acquires even more importance under the prevailing circumstances in the country, relating to the Pandemic, especially when the fulfilment of the Right to Health is dependent on the availability of effective and speedy Internet in order to access medical services and information on containment strategies. The denial of such critical information not only violates the peoples’ right to receive information, but is also a denial of their Right to Health. As a result of the Speed curbs, doctors were finding it difficult to render online medical services.

Furthermore, the Petitioners contended that restrictions on Internet Speed directly impacts the students of Jammu & Kashmir to exercise their Right to Education as they are unable to access to e-learning services such as Online Video Classes, and other Online educational content. This not only impacts their continuing education, but also disadvantages the students of Jammu & Kashmir who are preparing for national/competitive exams. Online education has also been disrupted due to the Speed limits, the Petitioners added.

Moreover, the Petitioners argued that the actions of Respondent No. 1 are violative of the directions laid down by this Court in Anuradha Bhasin (supra) as well as the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 [“Telecom Suspension Rules”] as no Review Committee has been constituted by the Respondent No. 1. Further, the blanket orders passed by Respondent No. 1, indicates non-application of mind.

Lastly, the Petitioners pleaded in the alternative that if the Respondents apprehend the misuse of data services, then they could consider restricting the Internet only in certain problematic areas or providing 3G/4G Internet to certain regions on a trial basis.

Arguments By Learned Solicitor General of India

The learned Attorney General preliminarily contended that Courts should not step into issues of national security which are best left to those in charge of policy making [refer to Zamora, (1916) 2 AC 77 (PC)]. Relying on some judicial pronouncements submitted that the claims of fundamental rights have to be examined against the larger Public Interest of protecting the security of the State, wherein, while balancing the aforesaid conflicting rights, the security of the nation should triumph against the fundamental rights of the citizens. Moreover, in the prevailing circumstances, wherein, there is continuing insurgency in the region, the spreading of fake news to incite violence, etc., it would not be possible to provide full internet services to the region.

The Central Government had also pointed to certain material, which indicate that cyber terrorism is on the rise within the Valley and the Pakistani Military in its Green Book 2020 has called for an Information Warfare on Kashmir, after the revocation of special status of Jammu & Kashmir.

Learned Solicitor General argued that the advisories and documents relating to Covid-19 have already been accessed by over 1 lakh health professionals in the Union Territory of Jammu & Kashmir through fixed line Internet. Further, to ensure effective access to Right to Health, the Respondent No. 2 is broadcasting information through various Radio Channels and through Satellite TV and local Cable Networks. Wide publicity is also being given to various helpline numbers which have been established for Covid-19 related queries through Print and Electronic media. With respect to the Right to Education of the students of Jammu & Kashmir, lessons are being delivered on 16 DD Channels at a National level, and through the Radio. The Department has also undertaken the distribution and delivery of textbooks, upto elementary level, to the eligible students at their homes.

The Learned Solicitor General also highlighted the fact that over 108 terrorist incidents have taken place in the recent past, between August 05, 2019 to April 25, 2020 in the Union Territory of Jammu & Kashmir. Since the current situation in the Union Territory of Jammu & Kashmir is very grave and volatile, even referring to the recent terrorist activity in Kupwara District, the authorities have calibrated the restrictions based on the requirement so as to reduce the misuse of Internet and that the measures adopted by the authorities are reasonable.

The Bench comprising Justices N. V. Ramana, R. Subhash Reddy & B. R. Gavai directed the constitution of a Special Committee comprising Secretaries of Union Ministries of Home Affairs & Communications and the Chief Secretary of Jammu & Kashmir to examine the contentions and suggestions of the Petitioners as well as the Respondents.

23. At the same time, the Court is also cognizant of the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens. It may be noted that in the earlier Judgment of Anuradha Bhasin (supra) this Court had directed that, under the usual course, every order passed under Rule 2 (2) of the Telecom Suspension Rules restricting the internet is to be placed before a Review Committee which provides for adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored. However, we are of the view that since the issues involved affect the State, and the Nation, the Review Committee which consists of only State level officers, may not be in a position to satisfactorily address all the issues raised. ruled the Bench.

24... 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 and advise the Respondent No. 1 regarding the same, in terms of our earlier directions, added the Bench disposing of the Writ Petitions.

Fundamental Rights to be balanced against national security

The fundamental rights of citizens need to be balanced with national security concerns, when the situation so demand, Bench observed, as follows:
12. At the outset, we have already laid down that the fundamental rights of citizens need to be balanced with national security concerns, when the situation so demands. This Court is cognizant of the importance of these matters for the national security concerns, and takes the same with utmost seriousness to ensure that citizens enjoy life and liberty to the greatest possible extent. National security concerns and human rights must be reasonably and defensibly adjusted with one another, in line with the constitutional principles. There is no doubt that the present situation calls for a delicate balancing, looking to the peculiar circumstances prevailing in the Union Territory of Jammu and Kashmir.

The Bench referred to its Judgment in the Anuradha Bhasin (supra), which has alluded to the fact that modern terrorism is being propagated through the Internet and by using technology in the following manner:
“39. Modern terrorism heavily relies on the Internet. Operations on the Internet do not require substantial expenditure and are not traceable easily. The Internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies. The prevalence of the Internet provides an easy inroad to young impressionable minds….”

Following Anuradha Bhasin case, which directed the administration to review the restrictions applying the principle of proportionality, the administrations has been passing several orders, periodically easing the restrictions in a phased manner, noted the Bench.

The Supreme Court took note of the submissions of the Centre that continuous infiltration, foreign influence, violent extremism and issues of national integrity are prevalent in the Union Territory of Jammu & Kashmir.

The Bench also noted the that since 05.08.2019, around 108 terrorist related incidents have taken place in Union Territory of Jammu & Kashmir, wherein 99 incidents were reported from the Kashmir Province and 09 from Jammu Province.

In total, 30 civilians have lost their lives and 114 civilians have been injured. Further, more than 20 security personnel have been martyred and 54 security personnel have been injured. Moreover, 76 terrorists have been gunned down, the Court stated in the Judgment.

The Judgment also included a chart containing details of terrorist incidents which took place in the region between April 26 and May 05, 2020.

The administration stated that speed restrictions are necessary to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters.

Regarding the blanket orders having been passed for the entire Union Territory of Jammu & Kashmir rather than confining it to problematic areas, the Bench observed that:
16. In any case, we may note that the common thread in the impugned orders is that they have been passed for the entire Union Territory of Jammu & Kashmir. In this regard, our observations in the Anuradha Bhasin (supra) may be of some relevance:
“The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.”

Although the present orders indicate that they have been passed for a limited period of time, the order does not provide any reasons to reflect that all the districts of the Union Territory of Jammu & Kashmir require the imposition of such restrictions. At the same time, we do recognize that the Union Territory of Jammu & Kashmir has been plagued with militancy, which is required to be taken into consideration. These competing considerations needs to calibrated in terms of our Judgment in Anuradha Bhasin (supra).

A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored, held the Bench.

Hon'ble Supreme Court was called upon to address a very important but sensitive issue on national security and human rights, while ensuring that the national security and human rights can be reasonably and defensibly balanced, answered the same with greater responsibility and taking utmost seriousness.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
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