The Supreme Court rejected three Writ Petitions filed by Foundation For Media Professionals, Private Schools Association of J&K & Soayib Qureshi, seeking the restoration of 4G Internet Services in the Union Territory of Jammu & Kashmir. The plea was premised on the rights violations caused by suspending the Internet during a Pandemic and National lockdown, including the rights to Health, Education, Freedom of Speech, Freedom of Trade and Access to Justice.

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.

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.

Specifically, the Petitioners alleged violations of a January 10, 2020 Judgment of the Supreme Court, in Anuradha Bhasin Vs Union of India. The Supreme Court had then laid down important safeguards that the Government should follow before imposing an Internet shutdown.

The 4G Judgment undermines the Rule of Law. In the Judgment, the Supreme Court accepts that the Government has violated Anuradha Bhasin, but itself fails to apply the relevant principles laid down in Anuradha Bhasin. In addition, the Supreme Court finally abdicates the judicial task of deciding upon the constitutional validity of the Internet suspension to a Special Committee – composed of members of the executive.

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.

Unconstitutional but permissible?

The most striking feature of the 4G Judgment is the somewhat clear, somewhat cryptic acknowledgement that the Government has violated the law laid down in Anuradha Bhasin on two counts.

First, in Anuradha Bhasin, the Court had held that the minimal requirement for any suspension order to be lawful is that it must list the reasons for imposing restrictions:
[O]rders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance with law.

Relying on this holding, the Petitioners argued that since the repeated suspension orders pertaining to Jammu & Kashmir did not disclose any reasons, they contravened Anuradha Bhasin. The Supreme Court agreed.

Second, in Anuradha Bhasin the Court was clear that any restrictions on the freedom of speech must satisfy the proportionality test – which means the restrictions must be a proportionate response to the aim sought to be achieved through the restrictions. Proportionality is judged by looking, among other things, at the territorial extent of the restriction. This means the Internet must only be suspended in regions where an imminent threat to public order exists. The Petitioners relied on this holding and challenged the suspension orders on the ground that they apply to the entire Union Territory, without explaining why such a need exists.

Once again, the Supreme Court agreed.
Surprisingly, however, despite agreeing with the Petitioners on both counts, the Supreme Court refused to invalidate the suspension orders. It held that while the Petitioners' submission would merit consideration in normal circumstances, the present situation in Jammu & Kashmir is compelling and warrants consideration.

Thus, in a unique approach to rights adjudication, the Supreme Court carved out an ad hoc exception to the norms of legality and proportionality enunciated in Anuradha Bhasin – in extraordinary circumstances, the Supreme Court seemed to imply, constitutional safeguards are suspended.

Selective 4G access to specific Websites

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).

One facet of proportionality is that the State's measure must be the least restrictive way of achieving the aim that the State seeks to achieve. In other words, out of a given set of alternatives – all of which can achieve the State's aim – the State is obligated to choose the alternative that least burdens the right(s) in question.

According to the Bhasin Bench, before settling on [a] measure, the authorities must assess the existence of any alternative mechanism in furtherance of the... goal. In the context of Internet suspensions, one way to judge least restrictiveness is to analyse whether access has been cut off or downgraded only to particular websites which pose a threat or to the Web as a whole.

In Anuradha Bhasin, the Supreme Court held that the State must consider the feasibility of selective blocking before resorting to a total Internet shutdown. In Jammu & Kashmir, for instance, the Government has been citing only social media Websites as the main cause for concern because they help spread terrorism and fake news. Yet, 4G is not made available for any Website, including Governmental, Educational, Medical or News Websites.

The Anuradha Bhasin Judgment records a specific query that the Supreme Court had put to the Solicitor General-whether it was feasible to suspend only social media services rather than the entire Internet. The Solicitor General had responded by saying that the same could not be done. Contrary to the Solicitor General's claim, however, selective blocking has been employed by the Government in Jammu & Kashmir after Anuradha Bhasin. 2G Internet was first restored in parts of the region on January 14, 2020 but only White-listed sites were permitted to be accessed over the Network. The number of White-listed Websites was gradually increased through the seven subsequent orders, until all Websites were finally made accessible over 2G on March 04, 2020.

Is it not similarly possible to selectively allow 4G access to some Websites while permitting 2G access to others?

It was important to ask whether the Government has explored that alternative. Yet, in an unfortunate oversight, the 4G Judgment does not address the possibility of selective access at all. Contrary to the principles recognised in Anuradha Bhasin, it does not hold the Government accountable for its failure to consider less restrictive alternatives.

Another committee?

Finally, the Bench comprising Justices N. V. Ramana, R. Subhash Reddy & B. R. Gavai in a curious move, directed setting up a Special Committee- the Union Home Secretary, the Union Communications Secretary, and the Chief Secretary of Jammu & Kashmir – to immediately decide whether the prevalent Internet restrictions are necessary. Seemingly as solace, the Committee has been directed to consider the Petitioners' arguments as well. However, this is deeply problematic for at least two reasons.

First, this amounts to judicial abdication of responsibility. The Constitution entrusts the function of rights adjudication exclusively to the High Courts and the Supreme Court. Indeed, Article 32 of the Constitution, which guarantees the right to approach the Supreme Court to remedy the violation of fundamental rights, prohibits the Supreme Court from abdicating in this fashion. In [Prem Chand Garg Vs Excise Commissioner, UP, 1963 AIR 996, 1963 SCR Supl. (1) 885], Justice Gajendragadkar eloquently spoke about the nature of the guarantee contained in Article 32:
32.......................There is no doubt that the right to move this Court conferred on the citizens of this country by Article 32 is itself a guaranteed right-and it holds the same place of pride in the Constitution as do the other provisions in respect of the citizens' fundamental rights. The fundamental rights guaranteed by Part III which have been made justiciable, form the most outstanding and distinguishing feature of the Indian Constitution.

It is true that the said rights arc not absolute and they have to be adjusted in relation to the interests of the general public. But as the scheme of Article 19 illustrates the difficult task of determining the propriety or the validity of adjustments made either legislatively or by executive action between the fundamental rights and the demands of socioeconomic welfare has been ultimately left in charge of the High Courts and the Supreme Court by the Constitution.

It is in the light of this position that the Constitution- makers thought it advisable to treat the citizens' right to move this Court for the enforcement of their fundamental rights as being a fundamental right by itself. The fundamental right to move this Court can, therefore be appropriately described as the comer-stone of the democratic edifice raised by the Constitution.

That is why it is natural that this Court should, in the words of Patanjali Sastri, J., regard itself:
as the protector and guarantor of fundamental rights, and should declare that it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights (Vide Ramesh Tlappar Y. The State of Madras).

In discharging the duties assigned to it, this Court has to play the role of a sentinel on the qui vive and it must always regard it as its solemn duty to protect the said fundamental rights' zealously and vigilantly.

The Constitution of India, therefore, does not leave the Supreme Court with the option of abdicating its duties in favour of a Committee no matter how special. Coupled with the general deferential approach evident from the Judgment, this abdication by the Supreme Court might have the unintended and unfortunate effect of signalling to the Government that the extraordinary situation in Jammu & Kashmir is a warrant to commit unconstitutional action without accountability.

Second, passing the buck to the Special Committee amounts to making the Executive a Judge in its own cause. The suspension order that was under challenge in the 4G case was passed by the Government of Jammu & Kashmir, and the Committee formed to decide upon the validity of that order includes the Chief Secretary of the same Government (Respondent No. 1 before the Court). The other two members of the Committee- the Union Home Secretary (Respondent No. 2) and Union Communications Secretary – are both part of the Central Government, which practically dictates the terms in Jammu & Kashmir.

Therefore, this abdication by the Supreme Court completely abandons the principle of checks and balances by asking the Executive to review its own orders. The Supreme Court should have been stricter in its approach. It should have sought a justification from the Government for not applying its mind to lesser restrictive alternatives. It should have remained consistent with the law it laid down in Bhasin and struck down the admittedly unreasoned suspension orders.

Most of all, it should not have abdicated its responsibility in favour of the Government itself. Although such an attitude would not prevent the passing of fresh suspension orders, it would certainly compel the Government to think more seriously and narrowly tailor its future orders so that they only fit existing security needs and go no further.

Written By: Damini Singh Chauhan, Semester 10th, The Law School, University of Jammu.
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