Tl;dr
Today, the Supreme Court heard substantive arguments regarding the constitutionality and legality of internet restrictions in Jammu & Kashmir during the COVID-19 pandemic. These restrictions were imposed through orders issued under the Telecom Suspension Rules 2017 which directed Internet Service Providers to slow down mobile internet speed in Jammu & Kashmir to 2G only. These internet slowdown orders were challenged before the Supreme Court by the Foundation for Media Professionals, Private School Association of Jammu & Kashmir and Soayib Qureshi. During today’s hearing, counsels for the petitioners highlighted the impact of the internet slowdown on access to healthcare and education in the region and the Government sought to justify the restrictions by citing national security concerns. After hearing arguments for nearly three hours, the three judge bench has reserved judgement in the matter.
Background
On 31 March 2020, the Foundation for Media Professionals (FMP) filed a petition before the Supreme Court challenging restriction of mobile internet speed in Jammu & Kashmir to 2G only during the COVID-19 pandemic. The continuing internet restrictions in Jammu & Kashmir were also subsequently challenged by the Private School Association for Jammu & Kashmir and Soayib Qureshi. These petitions were listed for hearing before a three judge bench of Ramana J., Gavai J. and Reddy J. which had also heard the previous challenge against the communication shutdown imposed in Jammu & Kashmir on 05 August 2019 at the time of abrogation of Article 370 which provided a special status to the former state.
Through their pleadings and oral arguments, the petitioners highlighted the impact of the internet slowdown in Jammu & Kashmir during the COVID-19 lockdown on access to healthcare, education, livelihood and justice. These contentions were supported by personal narratives from doctors, teachers, students, business persons and lawyers in Jammu & Kashmir and a technical comparison of web performance at 2G and 4G speed (Read more here).
The petitioners further submitted that restriction of mobile internet speed to 2G only did not satisfy the proportionality standard endorsed by the Supreme Court in its judgement in Anuradha Bhasin v. Union of India because the State had failed to demonstrate that imposing internet restrictions on an entire population for over 9 months was the suitable, least restrictive and proportionate method of addressing terrorism during a public health crisis. To demonstrate this, the petitioners cited empirical research which suggested that internet shutdowns were counterproductive and could lead to more violence and recommended less restrictive alternatives such as blocking of specific websites. The petitioners also relied on the State’s own data to demonstrate that terrorist activity in the region has continuously decreased since 1990 despite the introduction of smartphones and high speed internet. These factual and legal arguments have been explained in greater detail in the written submissions filed by Foundation for Media Professionals and you can read more here.
The Government’s stance
In its counter-affidavit and during oral arguments, the Government repeatedly invoked national security concerns to justify the internet slowdown. It cited the history of cross border terrorism in the region to explain why internet restrictions were necessary to prevent disemmination of fake news by terrorists which could incite the public. However, if this argument about the region’s geo-political history was taken to its logical conclusion, it would mean that internet restrictions in Jammu & Kashmir would be permanent and this was expressly ruled out by the Supreme Court in Anuradha Bhasin v. Union of India. Further, misinformation is a pan-India problem but other states have not resorted to blanket internet restrictions and instead relied on post facto take down and prosecution.
In its counter-affidavit, the Government also made mutually contradictory statements about the internet being slow enough to foil the activities of terrorists but also being fast enough to not hamper the activities of ordinary citizens. For instance, it argued that terrorists would not be able to upload or download heavy data files at 2G speed but that somehow students will be able to continue their education through e-learning apps and videos at 2G speed. The Government also claimed that resources by the Ministry of Health and World Health Organization could be easily accessed at 2G speed despite technical simulations demonstrating that interactive resources like the WHO’s situation tracker do not work at observed 2G speeds at all.
The Government further argued that it had taken ameliorative measures to ensure people could access COVID-19 related information and continue their education despite lack of effective internet access. For instance, the Government claimed that it had established call centres to address people’s queries and classes were being broadcast on TV and radio for students. However, the Government did not address the petitioners’ arguments about how telemedicine was impossible without video facilities and how short one sided broadcasts cannot substitute a full day of interactive classes for students through video conference.
What happened at today’s hearing?
During today’s hearing, Mr. Huzefa Ahmadi, Senior Advocate for Foundation for Media Professionals began substantive arguments by highlighting how the internet slowdown during the COVID-19 crisis was undermining right to health because doctors could not access latest information or treat patients through telemedicine which requires video facilities. He also emphasized on the impact of internet restrictions on the right to education and the inability of students in Jammu & Kashmir to continue their education using video conferencing tools. In response to a query by the bench about fixed line connections operating at normal speed, he emphasized that a very small number of people have fixed line connections compared to mobile internet and due to the lockdown, it was impossible for people to travel to another place to access a fixed line connection. Finally, he urged the bench to consider that besides making bald assertions, the government had failed to show a rational connection between 4G internet speed and terrorism in the first place, and in fact, the government’s own data suggested that there had been a substantial decline in terrorism since 1990 despite an increase in the number of internet users.
Mr. Salman Khurshid, Senior Advocate for Private School Association of Jammu & Kashmir focused on the impact of deprivation of 4G internet on the right to education and highlighted the inadequacy of one hour classes being broadcast on TV and radio. He further noted that the government had failed to publish the orders of the Review Committee which was responsible for determining the necessity and proportionality of continuing internet restrictions every seven working days. Mr. Soayib Qureshi appearing for himself echoed similar concerns and suggested that the Government should have used less restrictive alternatives such as blocking specific websites.
Mr. KK Venugopal, the Attorney General and Mr. Tushar Mehta, the Solicitor General appearing for the Government argued that even during a pandemic, national security concerns should be paramount and the executive branch should be the sole decision maker in such matters. They also submitted that the petitioners’ concerns were unwarranted because many Indians do not have smartphones or access to the internet but there have been no reports of anyone dying on account of lack of internet access.
After hearing extensive arguments from all parties for nearly 3 hours over video conferencing, the 3 judge bench has reserved its order in the matter.
Credits Roll
IFF provided legal assistance to the Foundation for Media Professionals for this petition and we are extremely grateful to the entire legal team led by Senior Advocate, Mr. Huzefa Ahmadi and comprising of Advocate on Record, Shadan Farasat and Advocates, Vrinda Bhandari, Jahnavi Sindhu, Gautam Bhatia, Apar Gupta and Devdutta Mukhopadhyay. We would also like to express our appreciation towards Ms. Revati Laul who painstakingly collected personal narratives of residents of Jammu & Kashmir, Mr. Prateek Waghre who authored a technical comparison of web performance at 2G and 4G speeds, and Ms. Rohini Lakshane who previously conducted an analysis of usability of whitelisted websites in Jammu & Kashmir with Mr. Waghre.