Tl;dr
Today i.e. 26 November 2020, the Jammu & Kashmir Government is expected to issue another order under the Temporary Telecom Suspension Rules 2017 either extending or modifying internet restrictions in the region which have already crossed 480 days. After successive rounds of litigation before the Supreme Court, 4G mobile internet access was restored in 2 out of 20 districts of Jammu & Kashmir on 16 August 2020 but there has been no further relaxation of restrictions since then. Meanwhile, non-publication of orders issued by the Review Committee and the Special Committee remains a problem in Jammu & Kashmir which must be decided by the Supreme Court to ensure independent application of mind by these bodies and implementation of their recommendations.
Background
Today, the Jammu & Kashmir Government is expected to issue another order under the Temporary Telecom Suspension Rules 2017 either extending or modifying the internet restrictions imposed in the region. All communication services were first snapped on 05 August 2019, and so far, 4G mobile internet access has only been restored in 2 districts of Jammu & Kashmir, which are Ganderbal and Udhampur. In the remaining 18 districts, mobile internet speed is still being slowed down to 2G which is insufficient to support most modern websites and applications. Due to slow internet speed, the residents of Jammu & Kashmir have been unable to access online education, telemedicine and work from home facilities during the COVID-19 pandemic.
The internet restrictions in Jammu & Kashmir have been the subject of successive rounds of litigation, with the most recent being the contempt petition and application for directions filed by the Foundation for Media Professionals (FMP) earlier this year. On 11 May 2020, the Supreme Court had 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. 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.
During the course of hearings in the contempt petition, the government revealed that the Special Committee had held two meetings since its constitution on 15 May 2020 and 10 June 2020, and it had decided to defer the issue for two months since the security situation was allegedly not conducive to relaxation of internet restrictions. On 11 August 2020, the government stated that the Special Committee held its third meeting on 10 August 2020 where it found that the threat perception in Jammu & Kashmir continues to be high and that internet speed restrictions did not have any impact on COVID-19 control measures, education or business. However, the Special Committee agreed that 4G mobile internet can be restored in select low risk areas. This recommendation was put into effect by the Jammu & Kashmir Government on 16 August 2020 when it restored 4G mobile internet access in one district of Kashmir and one district of Jammu each.
Pending Supreme Court judgement
The contempt petition filed by FMP was disposed off by the Supreme Court on 11 August 2020 after the Union Government provided information about the meetings of the Special Committee and agreed to staggered 4G restoration in low risk areas. However, the application for directions filed by FMP was kept pending since it highlighted unresolved problems about non-publication of orders issued by the Review Committee and the Special Committee and lack of periodic review.
In its written reply filed on 25 August 2020, the Union Government has claimed that there exists no legal obligation to publish orders issued by the Review Committee and the Special Committee, and publication is necessary only for orders issued by the Home Secretary. In its rejoinder submissions, FMP has asserted that an obligation to publish orders issued by the Review Committee and the Special Committee flows from Articles 14, 19 and 21 of the Constitution. The rejoinder submissions were filed by FMP on 13 October 2020 and we are still awaiting the judgement of the Supreme Court on the issue of publication of orders issued by the Review Committee and the Special Committee.
In the meanwhile, the Special Committee was also supposed to examine the outcome of trial restoration of 4G mobile internet access in Ganderbal and Udhampur after two months as per the additional affidavit filed by the Union Government. Since 4G mobile internet was restored in these districts on 16 August 2020, the Special Committee should have held another meeting on or before 16 October 2020 but no information is available in the public domain about when such a meeting was held and whether any further relaxation of internet restrictions was recommended. The orders issued by the Home Secretary of Jammu & Kashmir Government on 21 October 2020 and 12 November 2020 reference a meeting of the Special Committee but they don't provide more specific information.
Why is publication of review orders necessary?
(i) Implementation
The process of review by the Review Committee and the Special Committee is intended to serve as a robust procedural safeguard against arbitrary and disproportionate use of internet shutdowns. However, without disclosure of the recommendations issued by the Review Committee and the Special Committee, it is impossible for the general public to obtain any information about the outcome of these review processes and whether their recommendations are actually being implemented.
Concerns exist about implementation of the recommendations of the Review Committee and the Special Committee because these bodies performs an advisory role and their findings are not binding in nature. Publication of recommendations of the Review Committee and the Special Committee is the only way to determine if their findings are being implemented, and such bare minimum transparency is necessary to enable aggrieved individuals to seek judicial remedy if their findings are being disregarded. The existence of two separate committees entrusted with the same function of reviewing internet restrictions in Jammu & Kashmir makes disclosure of recommendations even more important because otherwise, it is impossible for the public to know whether the findings of the two committees were consistent with each other and what were the reasons for disagreement, if any.
(ii) Independent application of mind
The Union Government has claimed that publication of orders of the Review Committee is not necessary since it is not a “new statutory order or directions” under the Temporary Telecom Suspension Rules 2017. However, the order issued by the Review Committee cannot be considered a mere extension of the order issued by the Home Secretary since such an interpretation would negate the Review Committee’s role as an oversight body which is expected to independently apply its mind to the facts underlying suspension orders.
Under Rule 2(6) of the Temporary Telecom Suspension Rules 2017, the Review Committee is required to determine if the prevailing situation in an area satisfies the requirements of Section 5(2) of the Telegraph Act, which can be invoked only on the occurrence of a public emergency or in the interest of public safety. In order to arrive at this determination, the Review Committee presumably evaluates all relevant material including but not limited to district wise figures of terrorism related incidents, latest information about the impact of internet restrictions and any changes in threat levels between the issuance of the suspension order and the date of review.
The examination of such material by the Review Committee is essential since the Supreme Court has unequivocally held that the geographical and temporal scope of internet restrictions must be narrowly tailored to what is absolutely necessary to combat an emergent situation. Therefore, if the Review Committee is functioning in accordance with the letter and spirit of the Supreme Court's directions, its orders will provide additional facts and reasoning, and they cannot be considered a mere repetition of the contents of the suspension order issued by the Home Secretary.
Important Documents
- Rejoinder Submissions dated 13.10.2020 filed by FMP (link)