The Supreme Court on Monday reserved orders on the petitions seeking restoration of 4G internet in Jammu and Kashmir so as to enable access to health services and online education during COVID-19 lockdown.
The petition filed by ‘Foundation of Media Professionals’, ‘Private Schools Association of J&K’ and Soayib Qureshi was heard via video conferencing by a bench comprising of Justices N V Ramana, Surya Kant and B R Gavai.
Senior Advocate Huzefa Ahmadi, appearing for Foundation of Media Professionals, submitted that doctors are finding difficultly in functioning efficiently without 4G speed.
While pointing towards the spike in the number of cases from 33 when the petition was filed to 701 cases with 8 deaths in the region, the petitioner submitted that doctors needed high speed net for accessing latest updates on COVID-19 and for online consultation with patients.
He said, “If you want to see a YouTube video, consult a doctor, even if you want to access the court through the VidYo app for an SC hearing, you require a 4G network connection, even the ‘Aarogya Setu’ app will not work on 2G speed.”
When the bench sought a reply regarding the security concerns raised by the State, Ahmadi submitted that the fundamental right to access to health care was equally important during such times of pandemic.
While pointing to the fact the State has not shown any nexus between 4G and terrorism, Ahmadi furthered his argument by stating that most cases of terrorism happened in the region when there was no internet at all
He submitted, “It’s for the government to explain how internet restriction is justified. Court cannot mechanically defer to the government’s statement that the restriction is justified. Bald statements that healthcare and access to information have not been effected are unfounded.”
Appearing for Private Schools Association of J&K, Senior Advocate Salman Kurshid added that the speed restrictions have affected online education.
He stated, “Private schools are under government directions to provide education via Video-conferencing. We have obligation under Right to Education Act to provide education”, he submitted.
Advocate Soayib Qureshi, who appeared as party-in-person also furthered the above arguments by stating that the speed restrictions violated the principles of reasonableness and proportionality discussed by the SC in the Anuradha Bhasin case.
While defending the speed restrictions as a necessary measure to control terrorism in the region Attorney General K K Venugopal, appearing for Central Government stated,
“There are good reasons why only fixed line internet was permitted (in J&K). With that, we can keep check on who is giving information and disseminating terrorist propaganda.”, he said.
AG further stressed that it was a “policy decision” of the Government, the Court should not interfere in it.
Submitting that health services were working in J&K even with the speed restrictions, Solicitor General Tushar Mehta, appearing for J&K administration, stated,
“There are other areas in the country where there is either no internet or only 2G is available. There is no information of someone dying of COVID19 because they didn’t have internet access!”, the SG submitted.
The SG further added that while landlines could be traced, mobile phones could be easily thrown away after being used for “anti-national” activities.
In the rejoinder, Senior Advocate Ahmadi submitted that the J&K administration had not carried out “periodic review” of the internet restrictions as mandated by the Anuradha Bhasin judgment.
He stated, “I have repeatedly pointed out why 2G network is not enough for an interactive class. It is a matter of elementary knowledge that 2G can’t be used for video. Practically, one can’t download because the application “gets timed out” on a 2G network. It makes no sense for a student trying to study on it.”
He further submitted that the secondary school students of the region were at a disadvantage while competing with students from other parts of the country who had access to 4G network.
Praying before the Court to allow the opening of high-speed internet at least on a “trial basis” Ahmadi submitted,
“At least on a trial basis open up the faster internet speeds. See how it works. Entire Jammu is peaceful. Large parts of Kashmir are peaceful. But if you lock the well there is be problem.”
Senior Advocate Salman Khurshid, in his rejoinder, added that instead of cutting off 4G completely options to block problematic sites should be explored.
The Central government had imposed a complete communications blackout in the erstwhile state of J&K in August 2019 after abrogation of Article 370. Five months later in January 2020, on the basis of a SC order, the services were partially restored, only at 2G speed for mobile users. While access was provided only to a selected “white-listed” sites, social media was completely blocked.
The Supreme Court had observed that restrictions on internet had to be in accordance with the principles of proportionality under Article 19(2) and hence indefinite suspension of internet was not permissible.
The blockade on social media was lifted on March 4, but the speed was retained as 2G for mobile data.