Internet Restrictions in Jammu and Kashmir: Supreme Court Orders Special Committee Review (May 11, 2020)

Date of the Judgment: May 11, 2020
Citation: FOUNDATION FOR MEDIA PROFESSIONALS vs. UNION TERRITORY OF JAMMU AND KASHMIR & ANR. (2020) INSC 415
Judges: N.V. Ramana, J., R. Subhash Reddy, J., B.R. Gavai, J.

Can the government restrict internet speeds in the name of national security, even during a pandemic? The Supreme Court of India grappled with this critical question in a case concerning the Union Territory of Jammu and Kashmir. The court acknowledged the need to balance national security concerns with the fundamental rights of citizens, especially during the COVID-19 pandemic. The court ordered the formation of a special committee to review the internet restrictions.

Case Background

The case was brought before the Supreme Court by three petitioners: Foundation for Media Professionals, Soayib Qureshi, and Private Schools Association J&K. They challenged the Union Territory of Jammu and Kashmir’s decision to restrict mobile internet speeds to 2G. The petitioners argued that these restrictions severely impacted their fundamental rights, particularly during the COVID-19 pandemic. They contended that the restrictions hindered access to healthcare information, online education, and business operations.

The petitioners highlighted that the slow internet speeds prevented access to critical medical information and online education, thereby violating their rights to health and education. They also argued that the restrictions were a violation of the directions given by the Supreme Court in the case of *Anuradha Bhasin v. Union of India*, (2020) SCC Online SC 25, which mandated a proportionate approach to internet restrictions.

Timeline

Course of Proceedings

The petitioners directly approached the Supreme Court, seeking relief against the internet restrictions imposed by the Union Territory of Jammu and Kashmir. There were no lower court proceedings mentioned in the judgment.

Legal Framework

The Supreme Court referred to the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 [“Telecom Suspension Rules”]. These rules govern the suspension of telecom services, including internet access, during public emergencies or for public safety. The court emphasized the need for timely review and non-permanence of internet shutdown orders, as previously stated in *Anuradha Bhasin (supra)*.

The court also highlighted that any restrictions imposed under the Telecom Suspension Rules must be proportionate to the situation and must be reviewed by a Review Committee.

Arguments

The petitioners argued that the internet restrictions in the Union Territory of Jammu and Kashmir violated their fundamental rights, particularly the rights to health, education, business, and freedom of speech and expression. They contended that access to the internet was essential for accessing medical services and information during the COVID-19 pandemic, for students to participate in online education, and for businesses to operate.

The petitioners submitted that the restrictions were not in line with the directions given by the Supreme Court in *Anuradha Bhasin (supra)*, as no review committee had been constituted, and the orders were blanket orders without application of mind. They also argued that there was no rational nexus between the restriction of internet speed and national security, noting that terrorist incidents had reduced since the introduction of internet in the region.

The respondents, represented by the Attorney General and the Solicitor General, argued that the courts should not interfere in matters of national security. They contended that the fundamental rights of citizens must be balanced against the larger public interest of protecting the security of the state. They submitted that the prevailing situation in the region, with continuing insurgency and the spread of fake news, made it impossible to provide full internet services.

The respondents also argued that they had complied with previous directions of the court and that information regarding COVID-19 was easily accessible through 2G internet, fixed-line internet, radio, and TV. They also highlighted that lessons were being delivered on DD channels and textbooks were being distributed to students. They also pointed out that there had been 108 terrorist incidents between August 5, 2019, and April 25, 2020.

The respondents further submitted that cyber terrorism was on the rise, and the Pakistani military had called for an information war on Kashmir.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the core issue was whether the restrictions imposed on internet speed in the Union Territory of Jammu and Kashmir were proportionate and justified, considering both national security concerns and the fundamental rights of citizens.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

• *Anuradha Bhasin v. Union of India*, (2020) SCC Online SC 25 – Supreme Court of India: This case laid down directions regarding the imposition of internet restrictions in a proportionate manner, emphasizing the need for timely review and non-permanence of internet shutdown orders.
• Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017: These rules govern the suspension of telecom services, including internet access, during public emergencies or for public safety.
• *Zamora*, (1916) 2 AC 77 (PC): This case was referred to by the Attorney General to argue that courts should not step into issues of national security.

Authorities Table

Judgment

The Supreme Court acknowledged the need to balance national security concerns with the fundamental rights of citizens. The court observed that while the authorities had taken steps to ease internet restrictions, the blanket orders for the entire Union Territory were not proportionate. The court also recognized the hardships faced by citizens due to the ongoing pandemic and the need for access to information and education.

The court noted that the existing review mechanism was inadequate and constituted a Special Committee to review the necessity of the continuation of the restrictions. The Special Committee was directed to examine the contentions of both the petitioners and the respondents.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

The Supreme Court relied heavily on its previous judgment in *Anuradha Bhasin v. Union of India* (2020) INSC 25, emphasizing the need for proportionality and the importance of a review mechanism. The court used this precedent to highlight the deficiencies in the orders passed by the Union Territory of Jammu and Kashmir. The court distinguished the case of *Zamora*, (1916) 2 AC 77 (PC) which was relied upon by the Attorney General to argue that courts should not step into issues of national security, noting that while national security is important, fundamental rights must also be considered.

The court referred to the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, to emphasize the need for a review committee to ensure that the imposed restrictions are narrowly tailored.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by the need to balance national security concerns with the fundamental rights of citizens, particularly during the COVID-19 pandemic. The court recognized the importance of internet access for healthcare, education, and business. The court also acknowledged the security concerns raised by the respondents, including cross-border terrorism and cyber threats.

The court was also concerned about the lack of proportionality in the blanket orders issued by the Union Territory of Jammu and Kashmir and the inadequacy of the existing review mechanism. The court emphasized the need for specific restrictions based on the situation in different areas.

Sentiment Analysis of Reasons

Fact:Law Ratio

Logical Reasoning

The court considered the arguments of both sides. While acknowledging the security concerns, the court emphasized that restrictions must be proportionate and should not be blanket orders for the entire territory. The court also noted that the existing review mechanism was inadequate.

The court considered the alternative interpretations of the situation, including the government’s argument that national security should prevail over fundamental rights. However, the court rejected this interpretation, emphasizing the need for a balanced approach.

The court reasoned that while the government had taken steps to ease restrictions, the blanket nature of the orders and the lack of an adequate review mechanism were problematic. The court therefore ordered the formation of a special committee to review the necessity of the restrictions.

The court’s decision was based on the principle of proportionality, which requires that any restrictions on fundamental rights must be necessary and narrowly tailored to achieve a legitimate objective.

The court provided the following reasons for its decision:

• The blanket orders were not proportionate.
• The existing review mechanism was inadequate.
• The need to balance national security with fundamental rights.
• The importance of internet access for healthcare, education, and business.

The court quoted the following from the judgment:

“The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.”

“Modern terrorism heavily relies on the internet. Operations on the internet do not require substantial expenditure and are not traceable easily.”

“The internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies.”

There were no dissenting opinions in this case.

The court’s decision has potential implications for future cases involving internet restrictions, emphasizing the need for proportionality and specific restrictions based on the situation in different areas.

The court did not introduce any new doctrines or legal principles but reinforced the principle of proportionality in the context of internet restrictions.

Key Takeaways

• Internet restrictions must be proportionate and narrowly tailored.
• Blanket orders for entire territories are generally not permissible.
• A robust review mechanism is essential for internet restriction orders.
• The need to balance national security with fundamental rights is paramount.
• The importance of internet access for healthcare, education, and business must be considered.

The judgment may lead to more specific and localized internet restrictions in the future, with a greater emphasis on protecting fundamental rights.

Directions

The Supreme Court directed the formation of a Special Committee comprising the following members:

1. The Secretary, Ministry of Home Affairs (Home Secretary), Government of India.
2. The Secretary, Department of Communications, Ministry of Communications, Government of India.
3. The Chief Secretary, Union Territory of Jammu and Kashmir.

The Special Committee was directed to examine the contentions of both the petitioners and the respondents, and to advise the Union Territory of Jammu and Kashmir regarding the necessity of the continuation of the restrictions.

Development of Law

The ratio decidendi of the case is that internet restrictions must be proportionate, narrowly tailored, and subject to a robust review mechanism. The judgment reinforces the principles laid down in *Anuradha Bhasin (supra)* and emphasizes the need to balance national security with fundamental rights. There was no change in the previous position of law, however, the court emphasized the need to have a national level review committee in cases involving national security.

Conclusion

In conclusion, the Supreme Court’s judgment in this case highlights the importance of balancing national security concerns with the fundamental rights of citizens. The court ordered the formation of a special committee to review the internet restrictions in Jammu and Kashmir, emphasizing the need for proportionate and specific restrictions. The judgment reinforces the principles laid down in previous cases and provides a framework for future cases involving internet restrictions.