New Delhi: In a controversial move, the Supreme Court on Monday refrained from passing any orders on the restoration of 4G internet services in Jammu and Kashmir, instead choosing to direct the Centre to constitute a ‘special committee’ to examine the contentions raised by the petitioners.
A bench of Justices N.V. Ramana, R. Subhash Reddy and B.R. Gavai said the court has to “ensure national security and human rights are balanced”, according to LiveLaw.
“We do recognise that the UT has plunged into crisis. At the same time court is cognisant to the concerns related to ongoing pandemic and hardships.”
#BREAKING: 3 judge #SupremeCourt bench led by Justice NV Ramana orders for a special committee be set up to look into the contentions raised by the petitioners seeking restoration of #4Ginternet in J&K. Secy of @HMOIndia , Min of Communication & Chief Sec of J&K to be it’s part pic.twitter.com/BqylFi1nwa
— Bar & Bench (@barandbench) May 11, 2020
“In the Anuradha Bhasin case, we said that there should be adequate procedural safeguards. On the same note, we directed to constitute a committee of secretaries comprising Centre and States, Secy of MHA, Ministry of Communication and CS of J&K. The Special Committee is directed to examine the contentions made by Petitioners, as well as the appropriateness of their contentions and the alternative remedy,” the court said.
“On this note, the petitions have been disposed of,” the bench said, reading out the operative portion of the judgment, according to LiveLaw.
The bench said the ‘special committee” will be headed by the Union home secretary, while the secretary of the Ministry of Communications and IT and the chief secretary of J&K will also be part of the committee.
The committee will examine the contentions of the petitioners and the respondents and will also examine the ‘appropriateness’ of the alternatives suggested by the petitioners, the court said.
The decision came under immediate criticism from some lawyers, who accused the bench of abdication of judicial responsibility.
It’s hard to see how this is not an abdication of judicial responsibility. The Constitution vests in the court the power to review actions of the executive. Delegating that function back to the executive nullifies the Constitution. https://t.co/jgcffBpTFk
— Suhrith (@suhrith) May 11, 2020
Lawyer and writer Gautam Bhatia said the judgment reminded him of the Emergency. “The executive will decide whether the executive violated fundamental rights,” he wrote on Twitter.
Reminded of the Emergency-era judgments: the executive will decide whether the executive violated fundamental rights, and whether the executive will grant a remedy for the rights violations of the executive. SC living up to its long-standing traditions. https://t.co/GButg7li6P
— Gautam Bhatia (@gautambhatia88) May 11, 2020
Internet services were suspended in Jammu and Kashmir in the lead up to the Centre’s decision on August 5, 2019 to dilute Article 370 and revoke the erstwhile state’s special status. The state was also bifurcate and relegated to a Union Territory status.
Anuradha Bhasin, the executive editor of Kashmir Times, had challenged the suspension of internet, following which the same bench of the top court had in January said that indefinite suspension of the Internet is not permissible.
Though the order was initially praised for recognising the right to access the Internet, it was also criticised for not explaining why it did not strike down restrictions which it found “unreasonable”.
While the complete blackout was lifted after the order, the speeds were restricted to 2G and only ‘white-listed’ sites were accessible to users. Social media was completely blocked, which was lifted on March 4, but the speed was retained as 2G for mobile data.
In the Anuradha Bhasin case, the bench had set up a ‘review committee’ to provide safeguards to ensure that the imposed restrictions are ‘narrowly tailored’. However, because the review committee only consisted of state-level officers, the Supreme Court in the present case observed, “… since the issues involved affect the State, the nation, the review committee… may not be in a position to satisfactorily address the issues raised”.
Hence, the Supreme Court said the ‘special committee’ will constitute secretaries at the national and state level to look into the ‘prevailing circumstances’.
Petitions were filed by the Foundation of Media Professionals, Private Schools Association of J&K and Soayib Qureshi, arguing that restriction of Internet speed amidst the COVID-19 pandemic resulted in “disproportionate infringement of the right to access internet”. The petitions also pointed out that doctors were finding it difficult to provide online medical services, adding that online education has also been disrupted.
On May 4, the bench had reserved orders in the case.
Arguments made by the petitioners and the government
According to LiveLaw, senior advocate Huzefa Ahmadi, appearing for the Foundation of Media Professionals, sought to rebut the government’s claims that high-speed internet will lead to terrorism. He said that most cases of terrorism “happened in the region when there was no internet at all”, adding that the state has not shown “any nexus between 4G and terrorism”.
Salman Kurshid, appearing for the 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. Media reports, including on The Wire, have pointed out how students are having a tough time in lockdown.
The Centre and the J&K administration justified the restrictions by citing the threat of terrorism. Attorney general K.K. Venugopal said only fixed line internet was permitted because “we can keep check on who is giving information and disseminating terrorist propaganda”, adding that the move was a “policy decision” in which the court should not interfere.