Case Summary: Foundation of Media Professionals v. Union Territory of Jammu and Kashmir, 2020

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Title of the Case: Foundation of Media Professionals V. Union Territory of Jammu and Kashmir, 2020

 

Citation: 2020 SCC online SC 453

Court: Supreme Court of India

Bench: N.V. Ramana, R. Subhash Reddy and B.R. Gavai

 

Parties Involved:

Appellant:

  • Foundation for Media Professionals
  • Soayib Qureshi
  • Private School Association J and K

Respondent:

  • Union Territory of Jammu and Kashmir

Background:

You and I, know the pain when we are Netflixing and suddenly the server goes down or exceeded the daily limit. That moment of frustration is equal to when one hits their pinkie toe. It is so obvious that we cannot survive without it. Yes indeed, pandemic gives us more time with our loved ones but one can’t always stick with them and the only polite escape from that is the internet. Thank God, we didn’t face this time when we didn’t have internet otherwise what would have happened to our sanity! Well, imagining only the situation without the internet is so frustrating then for once think of the time when J&K didn’t have any communication for so long what would have been their situation. As in no banking, no contacts; to at least know if people are okay, no news, no Spotify, no education and the list goes on.

The origin of this case study didn’t start in J&K, rather it started in 2016 when the United Nation of Human Rights counsel suggested ‘Right to the Internet’ should be made a fundamental right.[1] If we consider the date of the past decade there are over 400 internet shutdown all over the country. Hence, on 4th August 2019 when Art 370 was revoked, the state of J&K faced section 144 of IPC, as well as internet, shut down. It is the longest shutdown India has ever faced which was restored after 213 days, i.e., on 4th March 2020. [2]

In the case of Faheema Shirin R.K. vs State of Kerela, where a college student challenged the hostel rules to not use the phone from 6 PM-10 PM. Here the Kerela High Court explained the gravity of the usage of the internet as a very integral part of development. Moreover, the right to the Internet is a fundamental right and explained the connection to the right to education and the right to privacy.

In the case of Anuradha Bhasin vs UOI, challenged the ban on the internet for an indefinite time period plus restricting physical movement is violating Art 19 of the Indian Constitution. The Supreme Court held that a temporary ban for security concerns is permissible but an indefinite ban is not allowed. And hence, the court allowed 2G data services.

Then, this case was filed by the Foundation of Media Professionals vs UOI which challenged that many fundamental rights are violating like health, education, profession etc. where the court directed the government to allow 4G internet services and hence, various part of J&K got blessed with Internet services again. Not only that but court also explained the importance of maintaining a balance of national interest and human rights.

Facts:[3] [4]

The petitioner claimed on Human Rights through Government legitimized its case based on National Security and military activities.

The Government of India had been playing with the Right to access the Internet of individuals of Jammu and Kashmir, for quite a while. The restriction was applied on internet speed, which had been fluctuating from 2G to nothing. The measure of restriction J&K was facing, both quantitatively and subjectively, was running on edge after august 5, 2019 on which the exceptional status (article 370 and article 35(A)) of Jammu and Kashmir was renounced. At present, there are few cities that are enjoying the facility. The Government was juggling national security and fundamental rights and said terrorism is the reason for the ban of the Internet.

The petitioner affirmed that the ban of the internet to 2G particularly in the midst of the Covid pandemic and nationwide lockdown infringes people’s Right to information. It was additionally claimed that this restriction infringes the Supreme Court guidelines which are given in the judgment of Anuradha Bhasin versus the Union of India. Moreover, it was said that the government has neglected to give an objective nexus between the internet and terrorism.

Issues: [5]

  • Is the ban on the Internet is infringing on the Fundamental Rights of individuals of Jammu and Kashmir?
  • Is the ban on the internet is justified?
  • Is there is a relation between the Internet and terrorism? Will the ban or restriction curtail the spread of terrorism?
  • Is the restriction on the speed of the Internet will stop the online course of terror inciting material?
Also Read:  Case Summary: Bhaurao Shankar Lokhande v State of Maharashtra

Arguments by Petitioner:[6]

Legal counsellor Huzefa Ahmadi told the court that the COVID-19 circumstance in J&K is worse and added to those issues, the doctors can’t get to basic info about Covid treatment because of the internet speed. 75 specialists raised similar concerns.

Senior legal advisor Salman Khurshid said in the matter that private schools are following government guidelines to educate via video-conferencing which cannot be possible due to the restriction.

“We have an obligation under the Right to Education to provide education”

 

Arguments by Respondent:[7]

KK Venugopal, the Attorney General was presenting the UOI, told the Court that the orders that have been passed explicitly expressed those limitations or ban of internet and its speed are needed for public safety. Venugopal said that it’s regarding the security of the existences of the inhabitants in Jammu and Kashmir and not simply about the COVID-19 patients.

His exact words were:

“Terrorists are being pushed into the country. Yesterday, there were some tragic events also. These men could easily take videos of the troop movements because they were trusted. The enemy could know the troop movements if they had 4G,”

Venugopal also mentioned that the petitions must be analyzed against the larger public interest of public safety, adding that public safety is vital and those entrusted with ensuring public safety should be the sole judges in the matter.

“The matters of policy decision cannot be interfered with by the court. It must be left to the government,”

 

Judgement:[8]

The Supreme Court basically perceived the need of adjusting public safety concerns against the fundamental rights of residents. The Court addressed the means taken by the public authority following the previous judgment of the Supreme Court in Anuradha Bhasin v. Association of India. The Court recognized that the public authority had extended internet from a complete shutdown to permitting all sites through broadband lastly versatile administrations with 2G.  The Court accordingly set out a rundown of expanding insurgent activities in Kashmir, including occurrences of “cyber terrorism” brought up by the Respondent. In this specific situation, the Court held that better internet access, “alluring and helpful” was exceeded by the threat from those “attempting to penetrate the boundaries and destabilize the integrity of the country.” In light of this situation, the Court referred to the Anuradha Bhasin judgment, in which the Court held that “Modern Terrorism vigorously depends on the internet.”

Talking about the proportionality of the limitation, the court analysed that a blanket order was passed for the whole Union Territory of Jammu and Kashmir locales, rather than for the risk zones. The Court noticed that “the level of limitation and the scope, both regionally and temporarily, should remain according to what is really important to battle a developing circumstance.” While orders provided by the Union Territory of Jammu and Kashmir were for a restricted period, they neglected to give any reason to justify that such a limitation was important to be forced in all locale of Jammu and Kashmir. Again, following Anuradha Bhasin, the Supreme Court noted limitations ought to just be forced where it is absolutely necessary.

At last, the Supreme Court perceived the failure of the govt to adhere to the decision of the Supreme Court’s in Anuradha Bhasin, from which each request passed under Rule 2(2) of the Telecom Suspension Rules limiting internet access should be set before a Review Committee.

[1] Finology Legal, Right to Internet, Youtube (Sept 8, 2020), https://www.youtube.com/watch?v=6xsrVY3cpkA

[2] Finology Legal, Right to Internet, Youtube (Sept 8, 2020), https://www.youtube.com/watch?v=6xsrVY3cpkA

[3] Case Study: Foundation of Media Professionals V. Union Territory of Jammu and Kashmir, Desi Kanoon, (Sept 20, 2020), http://desikaanoon.in/case-study-foundation-of-media-professionals-v-union-territory-of-jammu-and-kashmir/

[4] N.V. Ramana,: Foundation of Media Professionals V. Union Territory of Jammu and Kashmir, Indian Kanoon,(May 11, 2020) https://indiankanoon.org/doc/123992151/

[5] N.V. Ramana,: Foundation of Media Professionals V. Union Territory of Jammu and Kashmir, Indian Kanoon,(May 11, 2020) https://indiankanoon.org/doc/123992151/

[6] Prachi Bharadwaj, Article 370| SC refuses to restore 4G internet services in Jammu and Kashmir; Constitutes a 3-member committee to take a call, SCC Online, (May 11, 2020), https://www.scconline.com/blog/post/2020/05/11/article-370-sc-refuses-to-restore-4g-internet-services-in-jammu-and-kashmir-constitutes-a-3-member-committee-to-take-a-call/

[7] Prachi Bharadwaj, Article 370| SC refuses to restore 4G internet services in Jammu and Kashmir; Constitutes a 3-member committee to take a call, SCC Online, (May 11, 2020), https://www.scconline.com/blog/post/2020/05/11/article-370-sc-refuses-to-restore-4g-internet-services-in-jammu-and-kashmir-constitutes-a-3-member-committee-to-take-a-call/

[8] Foundation of Media Professionals V. Union Territory of Jammu and Kashmir, Global Freedom of Expression, COLUMBIA UNIVERSITY, https://globalfreedomofexpression.columbia.edu/cases/foundation-for-media-professionals-v-union-territory-of-jammu-and-kashmir-anr/

 

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