Statement on Supreme Court's J&K 4G Decision : An incremental step towards restoration

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Tl;dr

Today, the Supreme Court passed an order on the restoration of 4G services in Jammu and Kashmir. This was in a petition filed by the Foundation by Media Professionals with two other petitioners. The Court directed the immediate constitution of a high-powered Special Committee which will be looking into the contentions of the Petitioners for 4G restoration in Jammu and Kashmir. Practically this means that 4G services will be restored in a phased manner and require further advocacy and time. While, we cannot imagine what people in Jammu and Kashmir will be feeling today --- we request them to maintain faith during these times. We  commit on our part to relentlessly continue to work for 4G restoration by making urgent and prompt representations before this Special Committee and effectively push for larger legal reform on internet shutdowns.

Background

When the Anuradha Bhasin judgement (which originally dealt with the challenge to the telecommunications blockade in Jammu and Kashmir) was pronounced on 10.01.2020, we clearly spelt out that this was a case which would require rigorous, follow-up work [read more here]. To realize it's potential, we continued to advise one of the intervenors in the case, namely the Foundation for Media Professionals (FMP) and subsequently two representations were sent on 31.02.2020 and on 27.03.2020 to urge full restoration of connectivity, including 4G services in Jammu and Kashmir.

Spurred by the inaction on 4G restoration and the unprecedented impact of the Covid-19 pandemic which brought unique risks, connectivity to high speed internet became a health care priority. Due to this after conferences with FMP, legal counsel approached the Supreme Court on 30.03.2020 pressing for full internet connectivity in Jammu and Kashmir both as a humanitarian and a fundamental rights issue [read the petition]. The pleadings and the written submissions demonstrate the stark and dire impact on the people residing in these regions who have been deprived of 4G internet connectivity during this pandemic. From medical healthcare for the elderly to lack of remote learning for school children and young adults. This petition also contained the testimonies of people from the region and an expert affidavit on the differences between 2G and 4G connectivity.

We also sought collectively to address the concerns on national security which were raised by the State Government and the Union of India in our responses from the lens of objectivity and facts. As with all materials they are available on our website and listed below.

Today's order and intention for further action

Based on inputs from counsel we understand the Supreme Court [judgement link] has held the following:

  • Balancing of human rights and national security: The case has raised an important issue on national security and human rights; and both have to be reasonably and defensibly be balanced. The Court has noticed that in the Orders passed in each district of Jammu and Kashmir anomalies such as, "[a]lthough 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 and
    Kashmir require the imposition of such restrictions
    ". However, the Hon'ble Court further observes that they recognise the militancy problem in Jammu and Kashmir and competing considerations need to be calibrated.
  • Constitution of a Special Committee : Since issues involved affect the state and nation, the existing review committee will not be able to assess the situation. Hence, a special committee will be immediately constituted comprising of the Secretary, Ministry of Home Affairs, Secretary, Ministry of Electronics and Technology, and the Jammu and Kashmir Chief Secretary. It will examine representations made by the Petitioners. To this all existing petitions will be sent for immediate consideration.

Practically this means that 4G services will most likely be considered by this Special Committee that will look, "into the prevailing circumstances... immediately" [Para 23]. The court in its parting paragraph has also noted that,

"24. The Special Committee is directed to examine the contentions of, and the material placed herein by, the Petitioners as well as the Respondents. 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."

We are determined to relentlessly continue to work for 4G restoration especially given the central role of internet connectivity in mitigating the injury of the Covid-19 pandemic. This will not only be through making representations to this special committee but also by examining wider policy side reforms to the legal framework which permits internet shutdowns and network disruptions in India.

The fight for our digital rights will not be easy and victories will come incrementally and thier tangible benefit will be realised in time. They will test our patience, perseverance and require us to be relentless in our efforts. We hope to implement it working in collaboration with collectives, groups and other organisations with honesty, belief and strategy.

We will continue our work with a sense of mission. We commit this to you.

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. There are many more collaborators, collectives and people to credit [not just lawyers in previous rounds of litigation] just like in an Avengers movie :) Rest assured a full credits roll is in order when we are able to fullfill the task we have set upon on.

Important Documents

  1. Decision of the Hon'ble Supreme Court in FMP v. Union of India & Others [link]
  2. Petition filed by FMP [link]
  3. Application for Additional Documents by FMP [link]
  4. Interim Applications by FMP [link]
  5. Counter-affidavit filed by the Government [link]
  6. Rejoinder filed by FMP [link]
  7. Written Submissions filed by FMP [link]

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