Human Rights Under Lockdown

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Militancy has peaked in the valley without 4G

Prakhar Raghuvanshi

THE INTERNET services were suspended in the State of Jammu and Kashmir (Now, the Union Territory of Jammu and Kashmir, hereinafter “the valley”), as a pre-emptive step in August 2019. Since then internet services are not restored to the full extent in the valley. Although on the direction of the Supreme Court of India (SC) 2G services were restored in January 2020, the valley still suffers from arbitrary orders of the valley administration amidst COVID-19 pandemic.

Following the national lock-down and other restrictive measures, a petition was moved to the SC to quash the order of the valley administration which suspended internet services. However, the SC on 11th May 2020, in FMP v UT of J&K, constituted a special committee to handle the issue at hand. The SC failed to appreciate human rights and allowed the government of India and the valley administration to cover the issue under the garb of national security.

The long-standing shutdown violated freedom of speech and expression as a constitutional right as well as a human right, enshrined under Article 19 of the Universal Declaration of Human Rights (UDHR). However, the gravity of issue has increased exponentially following COVID-19. The restrictions are in violation of the right to life (Article 3 of UDHR), right to health (Article 25 of UDHRWHO Constitution) and right to education (Article 26 of UDHR) inter alia rights.  COVID-19 has led to a situation where 4G internet services in the valley are the essential infrastructure which must be provided by the state to ensure that these rights are effective. The decreased 2G speed of the internet acts as an obstruction in obtaining the latest information/update regarding COVID-19. It is almost impossible to consult a doctor over video-calls, order medicines and other essentials through e-commerce. Moreover, students in the valley cannot prepare for examinations at 2G speed.

The SC by actively ignoring the blatant human rights violations has flouted its own decision in Anuradha Bhasin v Union of India, which applied the three-pronged test for violation of the right to life and personal liberty. The test mandates legality; legitimate state aim; and proportionality. It is the third principle which needs a closer look here. Proportionality ensures a rational nexus between the objects and means adopted to achieve them. It also mandates the use of the least restrictive measure.

The state argues that the actions are necessary to curb militancy and cross-border infiltration. However, it is bald-assertion that medium of the internet facilitates it. The speed of the internet currently being provided is sufficient for these purposes and militancy has peaked in the valley without 4G. There is absolutely no rationale for providing 2G internet coupled with fixed-line internet connection in the valley.

Furthermore, even if the nexus is presumed to exist, the measures used by the state are not least-restrictive in nature. The restrictions can be lifted in areas which are comparatively less likely to plunge into chaos or speed can be restored for verified customers in the valley, there are numerous options available apart from a blanket ban. Appreciating these measures would comply with the basic principles of proportionality, viz territorial and temporal degree of restriction.  These orders are per se disproportionate and manifestly arbitrary are result in denial of basic public utility.

Cross-border information warfare is yet another threat to national security which is argued by the state. However, in the 21st-century information warfare is used by nation-states across the globe, restriction flow of information in general through a gag order is not an effective solution for the state to adopt. Instead of curbing the spread of misinformation/fake news, such bans effectively close paths to cross-check information.

The SC in FMP v UT of J&K (¶ 14) stated that – “it might be desirable and convenient to have better internet in the present circumstances…” (emphasis supplied). This is indicative of the utter disregard of human rights in India. Through such statements, the SC not only leaves the suppressed on their own but also tarnishes its long-standing jurisprudence of human rights. Better internet in the 21st century, especially in times of COVID-19, is not desirable and convenient rather necessary.

  • Author is a student of law at the National Law University, Jodhpur. He can be reached at: prakhar2602@gmail.com

 

 

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