Balance security, rights, says Supreme Court as it rejects 4G for J&K

The Secretary, Department of Communications, and Chief Secretary of J&K will be part of the committee.

The bench asked the committee to examine the contentions of, and the material placed herein by the Petitioners as well as the Respondents and “also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster Internet (3G or 4G) on a trial basis over certain geographical areas”.

The petitioners, including Foundation for Media Professionals, had sought restoration of 4G Internet, citing the lockdown. They said the present 2G service was not enough for children to access online classes or for patients to consult doctors online. The lower service speed, the petitioners said, had also affected businesses dependent on the online mode.

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The bench referred to its earlier decision in the Anuradha Bhasin case in January this year wherein it ordered review of restrictions placed in J&K in the wake of abrogation of Article 370 of the Constitution on August 5, 2019.

Ordering formation of the Special Committee, the bench said while in the Anuradha Bhasin case it had said “under the usual course, every order passed under Rule 2 (2) of the Telecom Suspension Rules restricting the Internet is to be placed before a Review Committee which provides for adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored”, it was, however, “of the view that since the issues involved affect the State, and the nation, the Review Committee which consists of only State-level officers, may not be in a position to satisfactorily address all the issues raised”.

The bench said “although the present orders” restricting mobile Internet speed “indicate that they have been passed for a limited period of time, the order does not provide any reason to reflect that all the districts of the Union Territory of Jammu and Kashmir require the imposition of such restrictions”.

It said “one of the criteria for testing the proportionality of the orders is the territorial extent of the restrictions. In view of the observations made in Anuradha Bhasin… for meaningful enforcement of the spirit of the judgment, inter alia, the authorities are required to pass orders with respect to only those areas, where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier”.

The bench said “a perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross-border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored”.

It said “national security concerns and human rights must be reasonably and defensibly adjusted with one another, in line with the Constitutional principles”.

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It referred to statistics of terror attacks and loss of life in the region after August 5 and said it “will have to consider the above in its analysis”. It also referred to the government’s submission on Pakistan’s designs on J&K.

On the plea that online classes, medical consultation were being affected by the current 2G service, it said “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 incidents resulting in the death of innocent citizens and security forces every day, cannot be ignored”.

In its affidavit, the government had pointed out that there was no restriction on fixed-line broadband Internet.

On the petitioner’s argument that orders passed by the authorities showed non-application of mind, the bench “noted that the authorities have been taking steps towards easing of Internet restrictions taking into account the prevailing circumstances” and “this can be seen from the fact that initially only whitelisted websites were allowed, before Internet access to all websites was provided on broadband, and finally to post-paid and verified prepaid mobile users as well, although at 2G speeds”.