On October 17th, the Supreme Court issued notice in a writ petition filed by the Private Schools Association of Jammu and Kashmir praying for 4G mobile Internet services to be restored in Kashmir.
The association, which represents over 3,800 private schools in the Union Territory, argues that the petition was “necessitated by grave violation of the fundamental right to education of students in Jammu & Kashmir by Respondent No.1 who has continued slowing down mobile internet speed to 2G despite the COVID-19 induced shift to online schooling”.
As reported by Access Now, “people in Jammu and Kashmir experienced at least 85 Internet shutdowns in 2021. Most of these shutdowns were part of ‘counterterrorism’ measures by the state government”.
The petition challenges an order issued by Jammu and Kashmir’s Home Department on 11th December, 2020, which restricted mobile Internet speeds to 2G services in 18 out of 20 districts until 25th December, 2020. The impugned order violates Articles 14, 19, 21, and 21A of the Constitution, alleges the petition. It also allegedly contravenes the proportionality test for imposing restrictions on Fundamental Rights laid out in the Court’s 2020 judgment in Anuradha Bhasin v Union of India.
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Why it matters: “The Respondents are not even being asked to create new infrastructure or to use their budgetary allocation in specific ways to ensure access to education,” notes the petition. “They are only being requested to not deprive citizens in Jammu & Kashmir of 4G internet facilities that are already available and are actively being disabled by Internet Service Providers pursuant to the Impugned Order. This distinction is relevant because positive rights which require action by the State may be progressively realized but negative rights which protect against interference by the State must be immediately enforced by this Hon’ble Court.”
Respondents include the Home Department and Department of School Education (Government of Jammu & Kashmir), and the Ministries of Home Affairs and Education (Government of India). The Special Committee for Internet Restrictions in Jammu and Kashmir is also listed as a respondent.
What Arguments Have the Petitioners Made?
Internet Restrictions Violate the Fundamental Right to Education
The argument: The Right to Education is severely impacted by restricted mobile Internet services in Jammu and Kashmir. This amounts to a violation of fundamental rights—especially given that Courts have held that the rights to education and equality entail the obligation of ensuring equal access to the Internet.
What does the law say?: The Right to Education has been repeatedly held by the Supreme Court to ensure a life with dignity under Article 21 of the Constitution. More explicitly, Article 21A envisages the Right as inalienable, mandating the State to provide “free and compulsory education to all children of the age of six to fourteen years”.
Under the Right, the State is expected to not only ensure enrolment in schools, but to ensure that children have access to education and complete their elementary schooling. During the pandemic, Courts across the country ruled that governments are further obliged to ensure access to online education to fulfil this right.
For example, in 2020, the Delhi High Court noted that “the obligation to ensure nondiscrimination in education included equitable access to information and communication technologies,” adding that the digital divide amounted to a violation of Article 14. In 2019, the Kerala High Court ruled that the “right to have access to the internet becomes the part of right to education as well as the right to privacy under Article 21 of the Constitution of India.”
The rationale: If government policy is anything to go by, online education is here to stay—making access to the Internet to realise fundamental rights all the more important. “Online/distance learning shall continue to be the preferred mode of teaching and shall be encouraged,” says an SOP issued by the Ministry of Education cited in the petition.
In this environment, beyond studying and taking classes, Internet services will also be required to undertake academic assessments, and screen students to prevent COVID-19 transmission. “Online classes will remain necessary for students who are unable to attend in-person classes for various reasons including having a comorbidity or living with family members who have a comorbidity,” argues the petition.
Additionally, this creates an unequal playing field for students in Jammu and Kashmir competing with other Indian students, who enjoy unrestricted access to Internet services. This violates Article 14, argues the petition.
Internet Restriction in Jammu and Kashmir Does Not Comply with the Principles Laid Out in Anuradha Bhasin
The argument: “Orders passed under the Telecom Suspension Rules must be reasoned orders and indicate application of mind. (..) The present Impugned Order does not comply with these bare minimum requirements, as laid down under the Telecom Suspension Rules and (..) in Anuradha Bhasin (supra), and is, therefore, liable to be struck down,” states the petition.
Citing the Israeli Supreme Court, the petition adds that “while conducting proportionality analysis, courts cannot adopt the subjective standard of a military commander and the question is not whether the executive believes in good faith that the injury is proportionate. Instead, the standard is objective and it is a legal question which must be determined by the judiciary which is capable of appreciating the humanitarian impact of a restriction as well.”
What the law says: The Court has held that restrictions on Fundamental Rights held under Articles 19 and 21 must pass the proportionality test. Anuradha Bhasin went a step further, holding that the test “applies squarely to the case of internet shutdowns and restrictions upon access to the internet”.
As per the judgment, restrictions on Fundamental rights must “(a) be imposed by law; (b) serve a legitimate aim; (c) be suitable to achieve that aim (i.e., bear a rational relationship with the aim); (d) be necessary (i.e., the least restrictive alternative available to achieve the said goal); and (e) must not cause disproportionate harm to the rights holder,” notes the petition.
The rationale: The impugned order lacks legality, argues the petition, adding that Jammu and Kashmir’s Home Department “has failed to publish any orders issued by the Review Committee reviewing the Impugned Order, and in light of this, the Impugned Order does not have the sanction of law”.
The order, issued to stem “anti-national” activities also lacks a legitimate aim, argues the petition, submitting “that ‘anti-national elements’ has no legal meaning, and its inherent vagueness precludes it from underpinning any ‘legitimate aim’ under the proportionality standard”. This ambiguity prevents the public from knowing which regions are at risk of violence, and whether Internet-based restrictions have been tailored to them or “blanketly imposed”. The order also fails to cite instances of violence necessitating Internet suspension under the Telegraph Act and Telecom Suspension Rules. “Unless the requirement of a public emergency under the law is strictly adhered to, internet restrictions will be imposed in a routine and permanent manner and they would fall beyond the ambit of Article 19(2) of the Constitution,” the petition warns.
The petition further argues that a “lack of suitability” afflicts the order, given its belief that no nexus between the security of public order and restricted Internet exists. Citing expert commentary, the petition adds that”depriving citizens and authorities of a powerful tool to combat misinformation and radicalization can actually have a negative effect, instead of a positive one.”
A “lack of necessity” surrounds the order—given that less restrictive measures exist to combat alleged security concerns. These include blocking terrorist-linked websites under Section 69A of the Information and Technology Act, 2000, implementing limited Internet suspensions in specific areas based on intelligence inputs, restrictions on offline movement, identification of suspects and lawful interception of their communications, and awareness programs on misinformation and propaganda online, among other options. Instead, the order “issues a blanket direction to internet service providers to slowdown mobile internet speed in 18 out of 20 districts of Jammu & Kashmir, without providing any reasons which reflect the ground situation in different districts that may justify the restrictions territorially and temporally,” argues the petition.
That Jammu and Kashmir’s residents have been deprived of their fundamental rights as a result of restricted Internet services indicates “improper balancing“, argues the petition. In doing so, the impugned order also presumes the criminality of all residents in the remaining 18 districts. As noted in Puttaswamy v Union of India (2017), “the ‘presumption of criminality’ and the ‘jurisdiction of suspicion’ are no longer constitutionally valid and rights of citizens cannot be restricted without probable cause or suspicion.”
Additionally, “the rollback of rights that were hitherto guaranteed to the people of Jammu & Kashmir is unconstitutional“, adds the petition.
Internet Restrictions Also Violate Fundamental Rights to Health, Livelihood, Access to Justice, and Speech
The argument: Disabling digital infrastructure restricts fundamental rights including access to health, livelihood, justice, and speech. All these services were rapidly digitised during the pandemic.
What the law says: Article 21 guarantees the Right to Health, imposing an obligation on the State to create conditions that sustain good health. The Supreme Court further ruled in 2016 that the rights to a legal remedy, guaranteed access to justice, and adequate grievance redressal also fall under Articles 21 and 14.
Freedom of speech has also been interpreted to include the public right to know and access information in order to make informed choices, with Anuradha Bhasin adding that “the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.”
Additionally, Anuradha Bhasin noted that “freedom of trade and commerce through the medium of the internet is protected under Article 19(1)(g) of the Constitution”.
The rationale: “Disabling essential digital infrastructure during a contagious pandemic that necessitates social distancing, the Respondents have violated the fundamental right to health of residents of Jammu & Kashmir. Without 4G internet services which can support video conferencing, the people of Jammu & Kashmir are unable to access telemedicine and they are being forced to flock at hospitals which are hotbeds of infection,” argues the petition.
Internet restrictions also inhibit working from home and carrying out business, affecting the livelihoods of residents in the Union Territory, which is not justifiable under Article 19(6). “Lawyers and litigants in Jammu & Kashmir are unable to approach courts because they cannot access video conference facilities in view of (..) restriction on mobile internet speed,” adds the petition.
What’s more, restrictions on the Internet inhibit public participation in elections, stifling the flow of information on candidates. “Further, internet access during elections is crucial for the media and the public to document any instances of voter suppression, fraud or coercion,” notes the petition.
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