Internet Ban in Kashmir – Balancing Liberty and Security?

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This article has been written by Sudhanshu Upadhyay, pursuing B.B.A.,LLB. (H) from Amity Law School, Amity University Chhattisgarh,

On 11th May 2020 Supreme Court Refuses to Pass Orders For 4G Restoration in Jammu Kashmir. The court said that “While it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown. However, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incident resulting in the death of innocent citizens and security forces every day cannot be ignored” also supreme court directed the Centre to constitute a “Special Committee” to review and determine the necessity of the continuation of the restriction in the Union territory of Jammu Kashmir. The aforesaid committee is to be headed by the Secretary, Ministry of Home Affairs (Home Secretary) Government of India

However, the above judgement seems to be a modified version of the Supreme Court judgement on 10th January 2020. On the decision of 10th January, the court observed that indefinite suspension of internet is not permissible and that repeated order under Section 144 CrPC will amount to abuse of power.

The highlights from the Judgment on 10th January i.e. Anuradha Bhasin V. Union of India and Ors. W.P. no. 1031of 2019:
Freedom of speech and expression through the medium of Internet is a fundamental right under Article 19(1)(a) of the constitution.
The restriction on internet have to follow the principles of proportionality under Article 19(2)
Freedom of trade and commerce through internet is also a constitutionally protected right under Article 19(1)(g)
Suspension of Internet for Indefinite period not permissible. It can be only for a reasonable duration and periodic review should be done.
Government should publish all orders of prohibition to enable affected persons to challenge the same.
Prohibitory orders under section 144 CrPC cannot be imposed to suppress legitimate expressions of opinions and grievances or exercise of any democratic rights.
Section 144 CrPC orders can be imposed when there is apprehension of danger. But the danger must be in the nature of an “emergency”
While passing orders under section 144 CrPC, Magistrate has to balance interests of individual rights and concerns of the state.
The orders under Section 144 CrPC should state material facts to enable judicial review. The power should be exercised in a reasonable and bona fide manner.

Justification of Internet Ban Given by Government
The justification which government provides for these pro longed ban on internet is that the ban is imposed to maintain national security, peace, public tranquility, rule of law and public order in the state at the same time government also claims that government is competent enough to impose ban on internet as there exists Legislations which empowers the government to impose ban on internet. The ban on internet was imposed under the Temporary Suspension of Telecom Services Rules. Which enables the central and state government to suspend the internet and telecom services when there is a public emergency or a risk to public safety. Also, government states that fundamental right under article 19(1)(a), 19(1)(g) is not absolute and reasonable restrictions can be imposed in accordance with Article 19(2). Jammu and Kashmir administration and central government also stated that not lifting restrictions gradationally shall be detrimental to India as well as general public. Also government in reply stated that Mobile Internet is especially targeted as it is difficult to track down the sources of the “Shadow handles” which are operated using Dark web for recruitment by banned terror outfits like JeM, LeT these outfits are alleged to instigate youth to join terrorism and these alleged outfits uses mobile internet and dark web so they can’t be traced back. Government also claims to follow the Proportionality as it submits that the fixed-line connections i.e. broadband and fiber-internet has been resumed across various part of state. and that the speed of mobile internet is restricted from 4G to 2G. Government also claims that a very reasonable quantum of restriction has been imposed by way of reducing the internet services which is not only least restrictive but also most appropriate.


Problems Arising due to Indefinite Restriction on Internet
The finest explanation of why Internet nowadays is a Fundamental Right is mentioned in the recent judgement of Faheema Sharin v. State of Kerala. Court recognized in this judgement that internet is not necessary merely because it provides information to people, but also internet nowadays acts as a host of other services. “Apart from this court also recognized, that the internet constitutes not only a medium for speech but also promotes a gateway to information. A right to access the Internet, therefore, in the court’s opinion, has to be seen as an integral component of citizens right to freedom of speech and expression protected under article 19(1)(a)”. in the above case the restriction on internet has been imposed the order imposing the ban were also not made public. They were only released to court during the course of hearing. Also, there are various socio-economical factors also which government failed to acknowledge before imposing ban on Internet. for instance, government failed to acknowledge that a massive number of people in the Union territory rely on mobile internet services and not on broadband services for internet. Amid this COVID-19 crisis it is more important now for the citizens of Jammu and Kashmir to have the access of 4G internet to get well up to date about the information flowing about the pandemic. Doctors in the UT are also not able to access the online sources on measures to curb COVID-19 at all, due to the internet speed being too slow to download heavy files. Restricted internet speed also resists the government “work from home” policy especially for business in the Information Technology and IT Enabled Service sector. Also, the order of restricted internet services infringes the rights of students to get education as amid this pandemic Internet is developed as a medium to spread and share knowledge and imparting education through online classes but due to restrictions on internet speed children of UT are unable to access the online classes which also violation of right to education guaranteed under Article 21a of the Constitution. Also, trade and commerce has been affected badly due to restricted internet speed.

Government can’t just impose restrictions under Article 19(2) without any proper justification and reasonability. Supreme court in Modern Dental College v. State of MP 2009 7 SCC 751 held that “A limitation on constitutional Right will be constitutionally permissible if It is designated for a proper purpose

The measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of the purpose.
The measure undertaken are necessary in that case and there are no alternative measures that may similarly achieve that same purpose with lesser degree of limitation.
There needs to be a proper relation between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.

Government while imposing restriction failed to acknowledge that the alternative was there with lesser degree of limitation i.e. government could have identified the particular social media apps and sites used for terrorist recruitment and imposed ban on that particular apps or sites. Also, government failed to fulfil the social importance of restriction as amid this Global pandemic when the whole world is relied upon Internet for Information, education, trade and commerce, Research etc. it is a grave violation of the rights of the citizens of UT.

References:

1.https://www.livelaw.in/top-stories/internet-could-be-used-to-propagate-modern-terrorism-govt-of-jk-replies-to-plea-seeking-restoration-of-4g-at-sc-155948

2. https://www.livelaw.in/columns/the-kashmir-internet-ban-whats-at-stake-151114

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