New Delhi: It is indeed a paradox of our times. Despite having reasons to be aggrieved by the ‘remedy’ the Supreme Court provided in response to a petition seeking restoration of 4G internet services in Kashmir, the plaintiffs have been forced to seek the same bench’s intervention to at least ensure that the government comply with its order.
On May 11, the Supreme Court delivered a judgment which upheld the Modi government’s refusal to restore 4G internet services in the Union Territory of Jammu and Kashmir on the ground that security situation justifies it. At the same time, the court, as if to assuage the concerns of the petitioners, set up a “special committee” comprising the Union home secretary, Union communications secretary and the chief secretary of Jammu and Kashmir to “immediately” decide whether the prevalent internet restrictions are necessary and to consider the petitioners’ concerns. The lead petitioner in this case is Foundation for Media Professionals (FMP), a body set up in 2008 to champion causes that have a vital bearing on the work of journalists.
The constitution – and composition – of the special committee came in for criticism from many quarters, with legal analysts seeing it as an abdication of the court’s responsibility in favour of the executive, with the added irony that two of the three members of the “special committee” were the very officials who had imposed the 4G ban in the first place.
Since the dismissal of the 4G petitions by the FMP and others meant that the court would no longer monitor whether the Centre actually complies with its directions to set up the committee, and to consider the petitioner’s suggestions, it was only natural that the FMP would feel compelled to approach the court now that a month has passed and the ‘special committee’ is nowhere in sight.
Behind the Centre’s non-compliance
Indeed, the dismissal of the petition turned out to be a reason the Centre didn’t take the directions of the court in the May 11 judgment seriously. The Centre didn’t notify the formation of the special committee and hold its meetings even one month after the date of the judgment; instead it has continued its ad hoc decisions imposing further restrictions on internet speed without any rationale or reasoning. Worse, the Centre didn’t seem to display the same urgency as the court urged it to in deciding whether internet restrictions are necessary, and to address the petitioner’s concerns.
Ironically, the Centre had nothing to lose by notifying the setting up of the committee, and holding an “immediate” meeting to “consider” the issue, as directed by the court. After all, the court did not stipulate that the committee should decide the issue in favour of the restoration of 4G. Therefore, nothing prevented such a committee from meeting and deciding against restoration of 4G within a month of the May 11 judgment.
Now that a contempt petition has been filed, of course, the Centre can always cite the restrictions on 4G as the reason why the three-member committee – which includes the J&K chief secretary – could not hold a meeting through video-conferencing. You see, 2G isn’t fast enough! Or it may be concerned that convening its first meeting may end up weakening its case for the continuance of internet restrictions.
What the FMP is now asking for
Whatever may be the Centre’s excuse for non-compliance with the court’s directions, the government appears to have given the petitioners an opportunity to invoke the court’s contempt jurisdiction on a platter.
None expects the special committee so constituted to do justice to the grievances of the people of J&K with regard to the restoration of 4G internet services. Yet, the contempt petition is a way of seeking the Centre’s accountability– and reminding the court that its dismissal of the 4G petition on May 11 – rather than keep it pending – resulted in injustice.
The FMP now wants a fresh direction to the Centre to immediately notify the committee within three working days, and another direction to the committee to determine the necessity of the continuation of internet restrictions within three working days. The FMP’s third prayer is for an ad-interim order directing the Centre to restore 4G mobile internet in all J&K districts immediately, pending the disposal of the present application, and the decision of the special committee. Finally, it has sought the summoning of the Union home secretary and J&K chief secretary to explain their non-compliance with the May 11 judgment.
Restrictions on internet continue
On the night the May 11 judgment was delivered, the J&K administration issued an order directing internet service providers to continue a blanket restriction on mobile internet speed to 2G for the entire UT. The order expired on May 27, and was not reviewed either by the review committee constituted under the Telecom Suspension Rules or by the special committee constituted by the Supreme Court.
On May 16, the FMP sent a representation to the special committee seeking immediate restoration of 4G mobile internet services in J&K, bringing on record the Supreme Court’s observations that the committee had to “immediately” determine the necessity and proportionality of the continuation of blanket restrictions of mobile internet in J&K.
The representation detailed how the May 11 order violated an earlier judgment of the Supreme Court, and also highlighted certain factual aspects of the difficulties faced by the people of J&K due to the restriction of internet services during the COVID-19 pandemic and the lockdown. The FMP did not get any response to its representation, probably because the special committee was yet to be notified.
On May 27, the J&K administration passed another order continuing the restriction on mobile internet speeds to 2G in all districts throughout the UT, without any restriction by time or region. Notably, the order itself claims that terrorist attacks have increased, thus establishing that the internet speed restrictions are not a suitable measure for achieving the government’s desired aim.
Further, the order cites the onset of summer and the melting of snow as grounds for restricting internet speed. Such perennial reasons render internet restrictions permanent and are not based on any “emergency’ or “urgency” and go against the spirit of the Telecom Suspension Rules as well as the Supreme Court’s judgment in Anuradha Bhasin, where the court emphasised that the restrictions cannot be permanent.
The May 27 order is also patently incorrect insofar as it states that internet restrictions have not posed any hindrance to COVID-19 control measures including the use of mobile apps, accessing online educational content or carrying out business activities.
Pursuant to the judgment in Anuradha Bhasin, the special committee (which had replaced the Review Committee) must examine the orders passed by the J&K administration and assess the need for continuation of internet restrictions every seven working days. The special committee, therefore, must issue a reasoned order after examining the material placed on record regarding the unsuitability of internet restrictions as a counter-terrorism strategy, the availability of less restrictive alternatives and the harm being suffered by healthcare professionals, students, businesspersons and ordinary people of J&K.
The Supreme Court, in its May 11 judgment, had directed the special committee to immediately determine the necessity of continuation of internet restrictions in the UT, and whether faster internet should be permitted on a “trial basis” in certain areas of J&K. It entrusted the special committee with the function of ensuring that internet restrictions are geographically and temporally restricted to what is absolutely necessary and proportionate.
No shortage of alternatives
It is not as if there aren’t adequate alternatives to the Centre’s blanket bam approach. Indeed, the FMP in its submissions had offered several practical suggestions:
1. Identification of suspected persons, interception of their conversations, and/or blocking of their numbers under applicable law based on intelligence inputs;
2. The blocking of specific websites (blacklisting) that are known to spread terrorism or are used to recruit terrorists under Section 69A of the IT Act, 2000.
3. Restrictions upon internet access in a specific region for a specific period of time, based upon a specific intelligence input about a threat. The May 27 order specifically references an encounter in Srinagar and it fails to offer any material basis which would justify restrictions on internet access in all other districts of Jammu and Kashmir as well.
4. Offline measures, such as the considered and localised application of Section 144, Cr.P.C. on the basis of credible and specific intelligence, which can enforce restrictions on movement.
5. The government has already prohibited internet access on unverified prepaid SIM cards. Since verified prepaid SIM cards and post-paid connections can be more easily traced, they are unlikely to be used for any illegal activity and since they will be used by ordinary civilians, 4G internet should be restored on such SIM cards.
In Anuradha Bhasin, the Supreme Court held that internet restrictions cannot be imposed indefinitely and it directed the review committee under rule 2(5) of the Telecom Suspension Rules to periodically review the necessity of continuing the internet restrictions every seven working days. This direction was meant to provide for “adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored. Both the May 11 and May 27 orders breach this requirement because they authorise internet restrictions for a time period significantly longer than seven working days and there is no indication that it has been reviewed by the special committee constituted by the Supreme Court to replace the review committee.
Why the urgency to restore 4G?
Since the May 11 judgment, the COVID-19 crisis has worsened in J&K, the FMP’s new petition notes. There have been 3467 cases, and 39 deaths according to Ministry of Health and Family Welfare dashboard.
Access to 4G internet is crucial even during the current phase of the easing of the lockdown. As COVID-19 cases rise due to easing of restrictions, hospital infrastructure will get (and is already getting) overwhelmed, thus making telemedicine even more crucial during this phase. Doctors will continue to face the same problems in downloading and accessing essential medical information from the internet, as long as mobile internet speeds remain restricted to 2G.
Employers and district authorities have been directed to encourage the use of the Aarogya Setu mobile app, which takes 11 times longer to download on 2G speed as per technical simulations.
Shops have been directed to ensure physical distancing and not allow more than five customers at one time. Since shops will operate at limited capacity, e-commerce remains necessary to ensure that people have access to essential supplies without any difficulty.
All organisations are required to continue following work from home as far as possible, which requires high speed internet for file sharing and video conferencing. Schools have been directed to postpone their reopening. This means students have to rely on online learning for a longer duration than envisaged earlier.
The lack of 4G mobile internet has meant that the residents of J&K have continued to suffer and be deprived of adequate fulfilment of their right to health, education, employment and access to justice guaranteed under Article 14, 19, 21 and 21A of the constitution.
BJP leader Ram Madhav breaks ranks with government on 4G
Restoration of 4G internet services in Jammu and Kashmir is a broad-based demand which has been endorsed by leaders across party lines, claims the petition. Most recently, the national general secretary of the BJP, Ram Madhav wrote an op-ed article noting that “certain harsh measures like denial of 4G services, which were necessary under special circumstances, can now be done away with, as the state administration and security apparatus are capable of handling difficult situations”. He wrote:
“J&K has always been seen from either a Pakistan prism or the prism of the terrorists. That there are millions of ordinary people both in Jammu and in Kashmir, who are far removed from terrorism and separatism, and want to lead life as peaceful citizens of the country, does not appeal to these eminences.”
The FMP petition also cites Union home minister Amit Shah’s statement in a media interview (with Arnab Goswami, telecast on May 31) that “the lowest terrorist incidents after 1990 have occurred after the removal of 370 and during 2014-20”. Thus, “Respondent 3’s (Union Ministry of Home Affairs) own assessment of the security situation suggests that there is no pressing need to continue denying access to 4G internet services to all districts of Jammu and Kashmir”, FMP’s petition states.
Case for contempt
Civil contempt includes disobedience, which is the consequence or inference of a dormant or passive behaviour on the part of the contemnor. This includes cases where the contemnor does not take steps and just remains unmoved by the directions of the court. The FMP cites two cases to support its view.
In Maninderjit Singh Bitta v Union of India, (2012), the Supreme Court held that even in cases where no positive/active role is directly attributable to a person, his passive and dormant attitude of inaction may result in violation of the orders of the court and may render him liable for an action of contempt.
The FMP has relied on the same judgment to support its contention that disobedience of court orders by positive or active contribution or non-obedience by a passive and dormant conduct leads to the same result. FMP cites from the Supreme Court’s previous judgment in this case:
“Disobedience of orders of the court strikes at the very root of the rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. The proceedings before the highest court of the land in a public interest litigation, attain even more significance. These are the cases which come up for hearing before the court on a grievance raised by the public at large or public-spirited persons…”
In M.C. Mehta v Union of India, the Supreme Court observed in 2001: “….clear lapse on the part of NCT and Municipal Corporation. Even if there was no deliberate or wilful disregard for the court orders, there has clearly been a lackadaisical attitude and approach towards them. Though no further action in this matter need be taken for now, but such lethargic attitude if continues may soon become contumacious.”
While the FMP’s attempt to seek notification of the very special committee which it would have otherwise detested is pragmatic, the hearing of the case will throw light on whether the Supreme Court acknowledges that its initial decision to trust the government to review its own flawed restrictions on the internet rights of J&K residents was erroneous.