On Friday, January 22, the Jammu and Kashmir government issued yet another order authorising the extension of a 4G ban in the Union territory. It has become a fortnightly ritual in the former state where such orders are met with a mix of indifference and exasperation.
But prolonging the ban for months, without interruption, risks undermining the significance of the Supreme Court’s intervention in Anuradha Bhasin vs Union of India case in January last year. Couched in the diction of lofty idealism, the judgment had stopped short of declaring internet access a fundamental right and also did not call for the restoration of internet services in J&K.
But the court endorsed the principle of proportionality for internet shutdowns while reading procedural safeguards into the Telecom Suspension Rules. Henceforth all such suspension orders were supposed to be made publicly available, a timeframe for suspension specified and a review committee set up.
In Kashmir, where the legal basis for internet blackouts has previously remained shrouded in secrecy, the judgment paved the way for a more transparent framework. The Jammu & Kashmir Coalition of Civil Society (JKCCS) in its first-ever report on Internet shutdowns has observed that the J&K government had previously failed to furnish specific legal grounds for indefinite internet restrictions.
Instead, the report states, “the only public notifications…placed before the court were two vaguely worded “sample” orders issued by District Magistrates in two districts under Section 144 of the Criminal Procedure Code, 1973, without outlining how these were related to the indefinite and complete internet shutdown across all Kashmir districts, how many other similar orders were passed, by whom, when or under what circumstances.”
The enactment of Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017 pulled the brakes on the use of Section 144 of the Code of Criminal Procedure to authorise Internet shutdowns.
The Supreme Court in January last year held that blacking out internet services indefinitely is not permissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 as the suspension can only be availed temporarily and that all such orders are subject to judicial review.
This had inspired hope that the judiciary was finally placing checks on the executive. But a year has passed since the verdict came out and ban on high speed Internet remains firmly in place in J&K. With blackouts being enforced on and off as well, Kashmir is now the world’s most digitally starved region.
In Friday’s order, the government has cited “dissemination of seditions propaganda, terrorists inciting youth for furthering anti-India agenda and data services being used to facilitate infiltration” to justify the perpetuation of 4G ban. If a couple of such previous orders are reviewed, an interesting pattern emerges. In December 25 order, the government justifies the ban on apprehensions of “grenade attacks, infiltration and recruitment.”
On December 11, the government flagged “continuous attempts to radicalise the youth through social media.”On November 26, the J&K administration submitted that 4G will lead to “public disaffection and surge in terrorists activities.” On November 11, the ban was extended on grounds that “terrorists might dissuade the public from participating in (DDC) election process and attack political activists.”
So while purported imperatives necessitating the Internet restrictions in Kashmir always change, the 4G ban itself is uninterrupted, implying that its continuation is already pre-decided and the government only customarily puts out fresh reasons to justify the restrictions.
Otherwise, with 140 encounters and 580 killings of which 159 are members of armed forces, 2018 was the most violent year in a decade in J&K. Yet only sixty-five internet shutdowns were enforced in 2018 compared to sixty-nine in 2020. And the 4G ban notwithstanding, the recruitment in 2020 turned out second highest in the last ten years. This indicates that the government may have been overhyping the connection between high-speed internet and militancy.
The threats of terror attacks, militant recruitment and infiltration are not new to J&K. Their intensity has been ebbing and flowing from the last thirty years. But what’s been totally new is the scale and severity of internet restrictions. With the J&K government successfully able to get around the system, the issue of restrictive internet is likely to turn more intractable.
Here’s why: In May last year, the Supreme Court, while refusing to order the restoration of 4G, directed the Centre to constitute a special committee to examine the contentions raised by the petitioners Foundation of Media Professionals (FMP) who challenged the prolonged ban on high-speed internet in J&K. The special committee, which is separate from the review committee, was supposed to consist of representatives from both the central and the Union territory governments. In essence, it meant that the court, on whom the constitution devolves powers to review the executive, was delegating the functions back to the executive, effectively “nullifying constitution,” as one lawyer put it.
The special committee reportedly held two meetings between May and June. As per Centre’s submission to the court, it had made certain decisions and also reviewed them but did not put this information in public as it was supposed to do, prompting FMP to seek contempt proceedings against the Union government.
A week later, the Centre filed an affidavit in court submitting that the special committee “considered all facets of the matter, including the feasibility of alternatives suggested by the petitioners as well as the recent occurrence of terrorism-related incidents in the region” and decided against restoring the 4G Internet in J&K – a decision it would review after two months.
On August 8, the court urged the government to explore whether it can relax the restrictions in certain areas in view of the statement by the former lieutenant governor of J&K G.C. Murmu who backed restoration of 4G.
The J&K administration restored 4G services in Udhampur and Ganderbal districts on a trial basis on August 16, but refused to extend high-speed mobile internet beyond these precincts citing inputs from security agencies about “terror modules trying to lure youths into terrorist organizations.”
Till now, there have been no further changes in this posturing even as people across J&K continue to reel from the most damaging form of internet deprivation, affecting their access to health care, their trade, commerce and education. Last week, the Private Schools Association of Jammu and Kashmir representing 3,800 institutions, filed a fresh affidavit seeking the ease of restrictions on the internet. It said that children in J&K were losing academic years because it’s impossible to conduct online classes using video-conferencing tools such as Zoom or WebEx at 2G mobile Internet speed.
The reasons for such obduracy on the part of government are obvious – the judiciary has been remarkably lenient with the Centre and whatever little measures it took to enforce checks and balances to secure civil liberties and fundamental rights have been conveniently circumvented by the Jammu and Kashmir administration.
Shakir Mir is a Srinagar based journalist.