Restoration of 4G in Kashmir; Dissecting the Legality

Sikander Hyaat Khan

THE Supreme Court of India, finds itself in midst of a barrage of litigations in wake of the Covid-19 pandemic. A writ petition of pertinent importance has been filed before the Court, by the Foundation for Media Professionals and the Private Schools Association of J&K seeking restoration of 4G internet services.

At the outset of this discussion, a distinction must be drawn between the instant petition and Anuradha Bhasin, so as to address a confusion in peoples’ minds regarding why a writ petition seeking restoration of fast internet connectivity has been filed twice, one after the verdict in another has been rendered. The difference lies in the fact that the two are borne out of a separate cause of action.

The Union issued the Constitution Order 272, in August 2019, effectively stripping the state of the special status conferred to it under Article 370. The writ petition by Anuradha Bhasin was filed against restrictions on internet connectivity, communications and movement of the people imposed as measures to mitigate backlash. The judgment was rendered in January 2020, contents of which are known to public at large. The Union, later, vide an Order dated 26.3.2020, restricted internet speed in Kashmir to 2G. The instant writ petitions have been filed against this order.

One must now address questions at the heart of the matter, i.e. whether there is a violation of fundamental rights of Kashmiris due to the 26 March Order or the restriction is reasonable and permissible under the Constitution.

It is alleged that the said Order is in violation of the rights under Articles 14,19,21. The rights under these Articles are intricately linked and cannot be compartmentalised. A finding of the violation of one right leads to an adverse finding for the rest, as per the Golden Triangle rule laid down by the Supreme Court in Maneka Gandhi v. UOI case. it is also alleged that the Right to Education under Article 21A is being violated as lack of quality internet is hindering access to education that is now being imparted online due to lockdowns imposed to prevent Covid-19.

The Supreme Court has held in Anuradha Bhasin itself, that a fundamental right to freedom of speech and expression under Article 19(1)(a) can be extended to the internet. In the context of the pandemic, the restriction on internet is not only violative of the right to freedom of speech and expression, inter alia, but also freedom of trade and profession (from those eligible to work from home).

However, such freedom can be restricted “reasonably” by the government. The question is one of extent and rather than the existence of the power to restrict. To ascertain such extent, one may turn to the proportionality test. The Supreme Court held in CPIO v. Subhash Chandra Aggarwal, that proportionality requires that a right is not restricted “to a greater extent than necessary to fulfil the legitimate interest of the countervailing question”. In Mohd. Faruk v. State of MP, it was stated that in considering validity of an impugned act a Court must attempt an evaluation of the act’s direct impact upon the fundamental rights of the citizens affected and larger public interest sought to be ensured in light of the object sought to be achieved, its necessity to restrict the citizen’s freedom and the possibility of achieving the object by imposing a less drastic restraint.

The crux of these decisions is that before taking the measure, authorities must assess whether an alternative mechanism existed to help it achieve the goal. The principle requires to be tailored in accordance with the territorial extent of the restriction, stage of emergency, nature of emergency, duration of restrictive measure and nature of such restriction.

The crux of these decisions is that before taking the measure, authorities must assess whether an alternative mechanism existed to help it achieve the goal. The principle requires to be tailored in accordance with the territorial extent of the restriction, stage of emergency, nature of emergency, duration of restrictive measure and nature of such restriction. The law, also, clearly states that the proportionality test needs to be applied in context of facts and circumstances of a case.

The Attorney General responded to these petitions by pointing out that the issue of militancy could not be overlooked while allowing the restoration of fast internet connectivity. The implication of this submission being that restoration of fast internet connectivity would facilitate militant activities in Kashmir.

If the goal of the Order is to prevent militant activities to ensure public safety, it must be noted that restricting internet speed is not the only possible way of doing so, considering that rights of millions, have been brought to a standstill, more so in context of Covid-19 wherein, the internet has become the most crucial element of all aspects of life; be it education, work or communication. In the alternative, if such a restriction is considered legitimate, it ought to be imposed only in certain areas where militant activity is prominent.

Additionally, militancy in Kashmir is not a new phenomenon. The Union has used instrumentalities to quell insurgency in the past that did not involve an internet ban or slowdown. Considering that militancy is an issue that is not bound to subside in Kashmir anytime soon, the Union cannot shy away from using its resources to tackle the issue at the expense of suspending fundamental rights of citizens for prolonged periods in a constitutional democracy.

Author is a lawyer. He can be reached at: [email protected]

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