May 4, 2020
By Tanya Vashistha
The Supreme Court on Monday reserved orders on the petitions seeking restoration of 4G internet speed in Jammu and Kashmir, particularly to enable access to health services and online education during COVID-19 lockdown.
A bench comprising Justices N V Ramana, Surya Kant and B R Gavai heard the the petitions file by ‘Foundation of Media Professionals’, ‘Private Schools Association of J&K’ and Soayib Qureshi via video conferencing.
Senior Advocate Huzefa Ahmadi, appearing for Foundation of Media Professionals, submitted that doctors are finding it difficult to function effectively in the absence of 4G speed.
He highlighted that there are 701 cases of COVID-19 & 8 deaths in the region. When the petition was filed there were 33 cases, and the infections have escalated. Doctors need high speed net for accessing latest updates on COVID-19, and for online consultation with patients.
“If you want to see a YouTube video, consult a doctor, even if you want to access the court through the VidYo app for an SC hearing, you require a 4G network connection”, he stressed. Even the ‘Aarogya Setu’ app will not work on 2G speed, he said.
When the bench posed a query regarding the need to account for security concerns raised by the State, Ahmadi replied that during the times of pandemic, the fundamental right to access health care should also be given importance. Seeking to rebut the government’s claims that high speed net will lead to terrorism, Ahmadi submitted that most cases of terrorism happened in the region when there was no internet at all. The State has not shown any nexus between 4G and terrorism.
“It’s for the government to explain how internet restriction is justified. Court cannot mechanically defer to the government’s statement that the restriction is justified. Bald statements that healthcare and access to information have not been effected are unfounded.”, he submitted.
Senior Advocate Salman Kurshid, appearing for Private Schools Association of J&K, submitted that the speed restrictions have affected online education.
“Private schools are under government directions to provide education via Video-conferencing. We have obligation under Right to Education Act to provide education”, he submitted.
The Court also heard Advocate Soayib Qureshi, who appeared as party-in-person and submitted that the speed restrictions violated the principles of reasonableness and proportionality discussed by the SC in the Anuradha Bhasin case.
Attorney General KK Venugopal, appearing for Central Government, defended the speed restrictions as a necessary measure to control terrorism in the region.
“There are good reasons why only fixed line internet was permitted (in J&K). With that, we can keep check on who is giving information and disseminating terrorist propaganda.” He said. AG stressed that it was a “policy decision” of the Government, in which the Court should not interfere. Solicitor General Tushar Mehta, appearing for J&K administration, submitted that health services are working in J&K even with the speed restrictions.
The SG also said that there was no information of anyone dying of COVID-19 because of lack of internet access.
“There are other areas in the country where there is either no internet or only 2G is available. There is no information of someone dying of COVID19 because they didn’t have internet access!”, The SG submitted. The SG added that while landlines can be traced, mobile phones could be easily thrown away after being used for “anti-national” activities.
In rejoinder, Senior Advocate Ahmadi submitted that the J&K administration has not carried out “periodic review” of the internet restrictions as mandated by the Anuradha Bhasin judgment. “I have repeatedly pointed out why 2G network is not enough for an interactive class. It is a matter of elementary knowledge that 2G can’t be used for video”, Ahmadi submitted in rejoinder.
“Practically, one can’t download because the application “gets timed out” on a 2G network. It makes no sense for a student trying to study on it”, he added. He further submitted that the secondary schools students of the region are at a disadvantage while competing with students from other parts of the country having 4G net access. Ahmadi urged the Court to allow the opening of high-speed internet at least on a “trial basis”.
“At least on a trial basis open up the faster internet speeds. See how it works. Entire Jammu is peaceful. Large parts of Kashmir are peaceful. But if you lock the well there is be problem”, he submitted.
Senior Advocate Salman Khurshid, in his rejoinder, submitted that there are options for blocking problematic sites, which should be explored instead of cutting off 4G completely.
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. 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).
The blockade on social media was lifted on March 4, 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, the restrictions have been extended till May 11.
The administration stated that the speed restrictions have not affected COVID-19 control measures and online education.