In a significant move towards restoring 4G access in the Union Territory of Jammu and Kashmir, the central government told the Supreme Court on August 11 that 4G internet can be provided to one district each in Jammu and Kashmir after August 15 on a trial basis, provided that neither of the chosen districts were adjoining the international border or Line of Control (LoC). The outcome of this trial will be reviewed after two months and its impact will be assessed by the State Level Committee at least every week, Attorney General of India K.K. Venugopal said in the Supreme Court. It is currently now known if the two districts in question have been identified or not.

The decision was taken after the third meeting of the Special Committee was convened on August 10, the Centre told the Supreme Court, in an additional affidavit submitted by Venugopal. “[D]espite the current security situation” in Jammu and Kashmir, and in the surrounding areas, where the threat perception “continues to be high”, this decision was taken, the affidavit said.

In the previous hearing on August 7 on the contempt petition filed by the Foundation for Media Professional, the court had directed Solicitor General Tushar Mehta to seek instructions from the Centre about whether 4G internet can be restored in Jammu and Kashmir, at least in some areas. At the time, Mehta had said that he would need to take fresh instructions since a new Lieutenant Governor of the Union Territory of Jammu and Kashmir, Manoj Sinha, had assumed charged just the day before.

However, Senior Advocate Huzefa Ahmadi, the counsel for FMP, had made a written submission on August 10, which he repeatedly cited during the hearing, arguing that the review orders by the Special Committee have not been published or put in the public domain, thereby making it impossible for the orders to be judicially reviewed. This, Ahmadi argued, is in violation of the Anuradha Bhasin judgement and the May 11 order that the Court had issued in the FMP v Union of India case.

The apex court bench, constituting, Justices N.V. Ramana, R. Subhash Reddy B.R. Gavai, closed the contempt petition but directed the Attorney General to file a reply to Ahmadi’s petition within two weeks. Mehta, however, objected during the proceedings and said that no case for contempt had been made out.

Communication services were suspended in Jammu and Kashmir on August 4, 2019, a day before the Indian Parliament abrogated Article 370 that gave special status to the state. Through the abrogation of Article 370, the Indian government has formed two new union territories — Jammu and Kashmir, and Ladakh — in the region. Since then, certain services have been resumed, but the Jammu and Kashmir government has repeatedly passed orders to extend restrictions on internet speed in the region.

‘Adequate access to internet,’ says Committee

According to the additional affidavit submitted by Venugopal, the Committee thinks that “there is adequate access to the internet through broadband services available over landline to business and health care institutions”, and that “speed-related restrictions are not posing any hindrance to COVID control measures, access to education programs or carrying out business activities”. As the hearing was going on, Lok Sabha MP Nishikant Dubey (BJP) was making the same argument in the Parliamentary Standing Committee on Information Technology’s meeting on August 11.

The Special Committee, which comprises of the Union Home Secretary (who also chairs it), Department of Communications’ Secretary, and the Chief Secretary of the Union Territory of Jammu and Kashmir, was formed as per the Supreme Court’s May 11 order. Before August 10, it had met twice — on May 15 and June 10.

‘Are the orders of the Special Committee in public domain or not?’ Court seeks answer

Ahmadi argued that the orders and decisions made by the Special Committee had not been made public, in violation of the Anuradha Bhasin judgement and the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. The Anuradha Bhasin judgement had said:

“The Respondent State/competent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum.”

Ahmadi also cited the May 11 order as per which the Special Committee was to examine the “appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary” and “advise the Respondent No. 1 [Union Territory of Jammu and Kashmir] regarding the same”. This, he said, could only be done if the orders were made public.

Ahmadi also argued that since the orders of the Special Committee had not been made public, there was no way to know if they had actually been complied with. To this, Venugopal said, “I have got with me every single order that was passed. So they cannot say that it is not in the public domain. This Special Committee itself was formed through such an order.”

When Ahmadi pointed out that the Review Committee (as defined under Telecom Suspension Rules), which only consisted of state-level officers, was substituted by the Special Committee. Justice Reddy said, “That was a special case, not a substitution.” Justice Rmaana said that the Special Committee was only for this particular case and that the court had not overruled the Anuradha Bhasin judgement at all. The Anuradha Bhasin judgement had said,

“We therefore direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6). The Review Committee must therefore not only look into the question of whether the restrictions are still in compliance with the requirements of Section 5(2) of the Telegraph  Act, but must also look into the question of whether the orders are still proportionate, keeping in mind the constitutional consequences of the same. We clarify that looking to the fact that the restrictions contemplated under the Suspension Rules are temporary in nature, the same must not be allowed to extend beyond that time period which is necessary.”

Ahmadi again argued that the orders were not in the public domain. “What they have placed in the public domain is the original [Supreme Court] order and not the order of the Review Committee,” he said. When Venugopal asked him which order he was talking about, Ahmadi replied, “I don’t know since it is not in the public domain.” Mehta intervened and said that if an order is passed on May 27, that is the original order; if a revised order is passed at a later date, the revised order becomes the original order.

Justice Reddy finally asked Ahmadi if the orders of the Special Committee were on the website. Ahmadi said no. Ahmadi also pointed out that as per the Suspension Rules, an order was valid only for two weeks.

Apart from orders not being in the public domain, Ahmadi also said that as per the Anuradha Bhasin judgement, all these orders were to be reviewed within five days, but that was not happening.

SC ROP August 11 | Additional Affidavit filed by the Home Ministry | Written Submission by Petitioners | May 11 order

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