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Supreme Court issues notice to J&K admin on petition seeking restoration of 4G services

The Supreme Court has issued notice to the Jammu & Kashmir Union Territory and the Central government, giving them a week to respond to a petition seeking restoration of 4G internet services in the territory. The petition first became available on LiveLaw. Filed by the Foundation for Media Professionals on March 29, the petition cited difficulties in access to online classes and accurate information, in delivery of healthcare in the territory, and the inability to “work from home” due to slow internet speeds, in the ongoing COVID-19 pandemic and the resultant 21-day nationwide lockdown.

The petition says that restricting speeds to 2G violates fundamental rights to equality and freedom, including the right to elementary education, and right to free speech. Restricting internet to 2G speeds is “completely unreasonable” in a pandemic and lockdown condition, the petition said. It is a disproportionate restriction on fundamental rights, it added. Mobile internet services were restored in the union territory at 2G speeds last month after a 7-month internet blackout. Even this came after multiple whitelists allowing a limited number of websites — up to 1,600 per the last whitelist — were issued. Prepaid connections are allowed, but will require the kind of KYC verification usually done for postpaid connections.

The petition, to which the Jammu & Kashmir administration and the Union Home Ministry are party, was heard today by a 3-judge bench of Justice NV Ramana, Justice R Subhash Reddy, and Justice BR Gavai.

The first case of COVID-19 in Jammu & Kashmir was reported on March 9, and rose to 41 positive cases and 2 deaths by the time the petition was filed. It currently stands at 139 positive cases, while 6 people have died. Over 23,000 people are under home surveillance and over 500 people are under hospital quarantine. The petition argues:

An effective and functional internet constitutes an essential infrastructure for preserving and protecting the constitutionally guaranteed right to health. It is an essential tool to consume news and remain updated about the spread of the pandemic. It is also necessary in order to stay in touch with family during the present lockdown (guaranteed under Article 19(1)(a)); and, at a more general level, to conduct business (guaranteed under Article 19(1)(g)).

Jammu & Kashmir has 1.03 million wireless subscribers and only 132,000 wireline subscribers. This means that the majority of internet users are on mobile internet, and have to access the internet on restricted 2G speeds.

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Why 4G needs to be restored: FMP

The petition makes these main arguments on why 4G needs to be restored in the region.

1. Difficulties faced by doctors: The petition states that doctors are wasting time trying to download the latest studies, protocols, manuals and advisories on treatment and management of COVID-19. Public health and medical professionals, including the Jan Swasthya Abhiyan had written to the J&K’s principal secretary on March 23 highlighting the issues doctors face, and had sought restoration of 4G speeds. Doctors have also reported their inability to download PDFs containing guidelines for intensive care in hospitals.

2. Without telemedicine, higher hospital visits and risk to patients: Patients are at a higher risk of COVID-19 infection since telemedicine is “impossible”, and obligates patients to come to hospitals, which are hotbeds for infection. “However, remote consultations, which require video facilities to visually examine the patient, are practically impossible with slow 2G internet services,” the petition said. 4G services are necessary for video consultations, and for mental health counselling.

The lack of properly functioning internet services in the Union Territory is hampering social distancing efforts, and resulting in more in-person hospital and doctor visits, which drastically increases the risk of virus spread.

3. Journalists are unable to report accurate information as they cannot download official government-sourced audio-visual content and data about the COVID-19 pandemic. Moreover, they are unable to access broadband-connections at their offices or at government-run kiosks, given the lockdown.

4. Online classes cannot be conducted: Students in the territory are unable to access education, since tools like Zoom and Google Classroom do not operate on slow speeds. The Kashmir Private School Association urged the government late last month to restore 4G internet services in the region where schools have not been able to function properly since August 5, earlier die to abrogation of Article 370, and now because of the COVID-19 pandemic.

5. Working from home is impossible given 2G speeds, even though the Supreme Court has recognised that freedom of trade and commerce using the internet is constitutionally protected. Restrictions specifically in the region are not justifiable under Article 19(6).

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6. Access to information amidst a pandemic: Jammu & Kashmir residents are unable to access “potentially life-saving information” including accurate information provided by the Health Ministry and MyGovIndia’s WhatsApp chatbot. In fact, the Central government itself has declared internet, telecom, and IT services as essential, and has exempted them from the lockdown, the petition said, adding that:

The denial of access to critical information in times of a “notified disaster” seriously impacts the right to public health. For instance, under 2G network, the residents of Jammu & Kashmir will not be able to watch the Prime Minister’s speeches live on their mobile phones.

The petition highlighted that it is not asking for new infrastructure, or asking the administration “to use its budgetary allocation in specific ways to bolster the right to health”. The petition is only requesting that citizens in Jammu & Kashmir not be deprived of facilities already available to Indians across the country, which is effective and speedy internet, “an indispensable tool in the struggle against the COVID-19 epidemic”.

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