FMP files rejoinder before SC about Jammu & Kashmir 4G mobile internet ban #KeepUsOnline

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Tl;dr

During today's hearing before the Supreme Court in the contempt petition filed by the Foundation for Media Professionals (FMP), the Solicitor General sought an adjournment on behalf of the government. The matter is next listed on 07 August 2020. Yesterday, FMP filed its rejoinder to the Union Government's counter-affidavit and sought transparency in the functioning of the Special Committee.

Background

On 11 May 2020, the Supreme Court delivered its judgement in a petition filed by the Foundation for Media Professionals (FMP) seeking restoration of 4G mobile internet services in Jammu & Kashmir during the COVID-19 pandemic (Read more here). The Court constituted a Special Committee comprising (i) Secretary, Ministry of Home Affairs,  (ii) Secretary, Department of Telecommunications, and (iii) Chief Secretary, Government of Jammu & Kashmir to immediately review the 4G mobile internet ban. In particular, the Special Committee was directed to examine the material placed on record by all parties and consider the viability of less restrictive alternatives suggested by the petitioner.

Since there was no information available in the public domain about the functioning of the Special Committee, FMP was constrained to file a contempt petition before the Supreme Court again on 09 June 2020. The contempt petition was first listed for hearing before the Supreme Court on 16 July 2020, and during this hearing, the Attorney General undertook to file a reply on affidavit within one week (Read more here). The Union Government filed its reply to the contempt petition on 21 July 2020, and subsequently, FMP filed a rejoinder responding to the Union Government's counter-affidavit on 27 July 2020.

The matter was listed for hearing before the Supreme Court again today i.e. 28 July 2020. During the hearing, the Solicitor General sought an adjournment since he needed more time to go through FMP's rejoinder. The Court initially adjourned the matter till 05 August 2020 but this date was changed to 07 August 2020 after the Solicitor General stated that officials were likely to be busy with events on 05 August 2020, which is the one year anniversary of abrogation of Article 370 and the communication shutdown.

Union of India's Counter-affidavit

In its counter-affidavit, the Union Government has stated that the Special Committee has complied with the directions contained in the Supreme Court's judgement delivered on 11 May 2020. According to the counter-affidavit, the Special Committee has held two meetings so far on 15 May 2020 and 10 June 2020. It is alleged that during these meetings, the Special Committee considered all aspects of the situation including prevailing security concerns, impact of denial of 4G mobile internet services and viability of less restrictive alternatives suggested by the petitioners. However, the minutes of these meetings have not been annexed with the counter-affidavit to corroborate these boilerplate assertions.

The counter-affidavit further states that after its second meeting on 10 June 2020, the Special Committee decided that restoration of 4G mobile internet was not desirable at this time and deferred the issue for two months based on a "considered and wide-ranging assessment of the prevailing situation in this sensitive region."  A report to this effect was also allegedly submitted by the Special Committee to the Government of Jammu & Kashmir. The counter-affidavit states that a copy of the report is being placed before the Supreme Court but since the report is not annexed with the counter-affidavit, the Petitioner has not received a copy of the same and it appears to have been filed in sealed cover for the judges' eyes only.

FMP's Rejoinder

In its rejoinder, FMP has challenged the government's refusal to publish any details about the functioning of the Special Committee. The rejoinder contends that such secrecy is inconsistent with the judgements of the Supreme Court in Anuradha Bhasin v. Union of India and Shreya Singhal v. Union of India which require publication of orders that restrict fundamental rights to enable aggrieved persons to challenge such orders before a court of law. FMP's rejoinder further highlights that by holding only two meetings since 11 May 2020, the Special Committee has also failed to comply with the Supreme Court's directions in Anuradha Bhasin v. Union of India which require periodic review of internet restrictions every seven working days.

The rejoinder stresses that there is no way for the petitioner to assess or verify the actions of the Special Committee since a copy of the Report submitted by the Committee has not been shared with the petitioner. This is also contrary to the judgement in Anuradha Bhasin v. Union of India where the Court clearly held that if the State wishes to withhold any material from the petitioner, it must claim a specific ground of privilege on affidavit. Once it does so, the Court will then decide if the claim of privilege overrides the petitioner's rights and even then, a redacted version of the document with sensitive details removed should be shared with the petitioner.

To challenge the Union Government's threat assessment, the rejoinder also cites recent statements of the Lieutenant Governor of Jammu and Kashmir, G.C. Murmu who has expressed his hope and desire that the Special Committee will restore 4G mobile internet service and stated that high speed internet connectivity will not pose any problem.

The matter is listed next on 07 August 2020 and we will keep you updated. FMP was represented in today's proceedings by a legal team led by Senior Advocate, Huzefa Ahmadi and consisting of Advocates Shadan Farasat and Bharat Gupta and IFF associated counsels, Vrinda Bhandari, Apar Gupta, and Devdutta Mukhopadhyay.

Important Documents

  1. UoI's Counter-affidavit dated 21.07.2020 (link)
  2. FMP's Rejoinder dated 27.07.2020 (link)