Foundation of Media Professionals v. Union Territory of Jammu and Kashmir
(2020 SCC online SC 453) – 4G Landmark Case
Bench of Judges: N.V. Ramana, R. Subhash Reddy and B.R. Gavai
INTRODUCTION:
Foundation of Media Professionals v. Union Territory of Jammu and Kashmir is a Landmark Lawsuit which appeared before the Supreme Court in the year 2020. It is also called as 4G case. This case potray the Clash between National Security and Fundamental Rights namely Right to Health, Right to Education, Right to Business and Right to Freedom of Speech and Expression.
This case will prove to be a milestone in the history of India and will guide people further in realising their Rights. People of Jammu and Kashmir have been Striving for Life, which any other Indian in any part of the Country is leading. On analysing this case after putting feet in the shoes of people of Jammu and Kashmir, it appears that reasonable restrictions have greater value than Fundamental Rights possess. Moreover, the path of terrorism followed by Few have led the few in trouble.
This case was filed against the executive action for restraining the speed of Internet in the territory and Curtailing it to 2G, when country is heading towards5G Internet Services.
FACTS:
The petition was filed by the Foundation of Media Professionals before the Supreme Court of India for restoration of the 4G Internet Services in the valley, in lieu of the present Covid-19 Crisis.
The petitioner applied his Claim on the basis of Human Rights whereas Government justified its claim on the basis of National Security and militancy operations.
The Government of India has been playing with the Right to internet of the people of Jammu and Kashmir, since a long time. The restriction applied on speed of Internet has been fluctuating from 2G to zero. The amount of restrictions, both quantitatively and qualitatively, are on surge after august 5, 2019 on which the special status (article 370 and article 35(A)) of Jammu and Kashmir was revoked. At present too, the restriction on internet continues in the form of ban on 3G/4G internet. The government of India makes national security and nexus between internet and terrorism as the basis for the restriction of Internet.
The petitioner alleged that the restriction of internet to 2G especially amid coronavirus pandemic and nationwide lockdown violates their Right to information. It was also alleged that this restriction violated the Supreme Court guidelines provided in the judgement, Anuradha Bhasin vs Union of India[1]. Furthermore, It was claimed that the government has failed to provide a rational nexus between internet and terrorism.
ISSUES RAISED IN THE CASE:
The number of Issues which can be raised in this case are as follows:
- Whether the restriction of Internet is violative of Fundamental Rights of the people of Jammu and Kashmir?
- Whether the restriction is justified?
- Whether there is a nexus between terrorism and internet and will the restriction of Internet curtail the spread of terrorism?
- Whether restriction on speed of Internet will stop online circulation of terror provoking material?
DECISION OF THE COURT:
The Supreme Court of India came up with the decision of making a Special Committee as directed by the Court earlier in case of Anuradha Bhasin v. Union of India. The Court Justified the restriction of Internet on the basis of Rule2(2) of Telecom Suspension rules,2017. The Court held that since this is a case concerning the security of whole nation, Secretaries from both State and National Level will be able to serve for the cause of formation of this committee.
BACKGROUND:
Kashmir is an ethnically diverse Himalayan Region, covering around 86,000 square metre and it is famed all over the world, for its valleys, lakes, meadows and snow-capped mountains.[2]Because of its scenic beauty and geographical importance, this area has always been the apple of eyes of all its neighbouring States. Jan Morris, once described its importance, “Kashmir has always been more than a mere place, It has a quality of an experience, or a state of Mind, or perhaps an ideal”.
The state of Kashmir has been under British Control before India attained Independence. After partition of India into two lands, India and Pakistan in 1947, Kashmir was Left Independent. At that time, Kashmir was under the rule of Maharaja Hari Singh, and it was given a chance of joining either India or Pakistan, according to the Indian Independence Act.
The Maharaja of Kashmir wanted it to be independent but owing to the violent rapid attacks from the side of Pakistan, Kashmir cannot show audacity to stand alone.
Hari Singh finally sign Instrument of Accession with the Pt. Jawaharlal Nehru and became part of India. Henceforth, it became crown of Mother India.
Pakistan has always behaved like a freaking Fowl in the Jungle of Expansion. The reason for this attitude of Pakistan were:
- Muslim domination in Jammu and Kashmir.
- A place filled with scenic beauty which can contribute a lot towards its economic benefits.
- After controlling Kashmir, the strategic and geographical importance of Pakistan will increase.
- India will become an easy target to Pakistan.
- Last, but not the least to satiate its greed based on whimsical ideas.
The first attack from Pakistan came around the year 1948. The mystery of Pakistan Occupied Kashmir rests in the coffin of this war. The, then Prime Minister of India approached United Nations to stop the ongoing war and declare ceasefire. As a result of this action, Ceasefire line has to be declared and divided Kashmir became the reality.
The next two war between these two nuclear powered nations were in the year 1965 and 1999.Despite, these rapid attacks and counter attacks, divided and terrified Kashmir exist as a reality.
The rapidly changing scenario of Kashmir and rise of Mujhaideen forces turned peaceful Kashmir into a violet land. The open-ended support from Pakistan agitated the movement. The forceful Migration of Kashmiri Pandits was the proof of rise of these forces. There have been evidences and incidents showing the rapid support to these militant groups by Pakistani Army. Owing, to the world wide accepted International rules of maintain peace, it can never support terrorism directly, but through terrorist organisations working in Pakistan, it is fully controlling the mission of Terrorism.
Hafiz saeed, Osama bin Laden, Zakir Musa are some of the glorified citizens of terror nation disturbing Peace in Kashmir.
CRITICAL ANALYSIS:
The petitioner emphasised the point that amid this pandemic, the restrictions imposed on the speed of Internet will curtail their Right to health, Right to Education, Right to Business and Right to Freedom of Speech and Expression. The Petitioner pointed out that it also violates their Right to Information. The petitioner in this case raised the issue that Right to health of the citizens has increasingly become more important in the present pandemic situation, but court failed to consider this point The petitioner also raised the issue that in this crucial time, when entire world is battling with the virus, the various guidelines issued by the Ayush Ministry are not accessible to the people in Jammu and Kashmir. The Supreme court of India overlooked this aspect of Public health and hardly had it given any reason to substantiate its Judgement. The Court always stressed on the point that national Security is important. But national Security at the cost of Public health cannot be justified.
In response to this claim, Respondent argued that many social media Platforms, Government Websites and applications disseminating advisories on the covid-19 attack are accessible through 2G Internet, as well. The importance of Internet becomes more important here as these sites which are receiving a large traffic from all over the country during the lockdown and post-lockdown phase, may create trouble for the people of Jammu and Kashmir. The court overlooked this issue and relied on the promises of Government, which assured it of establishing Right to health of Citizens by distributing pamphlets and broadcasting information on radio.
The lack of reasons on the part of the Court, raised apprehensions about the importance of Right to Health in court’s eyes.The court said that the right to health can be suspended in order to maintain the security of the Union and in this situation Right to health is crashing against security of the nation. The Court crystallized the fact that Right to health can also be achieved by viewing information through 2G speed of Internet, but to what extent? The court may appear correct but it failed to substantiate its opinion.
The second ground taken by the petitioner was that the right to freedom of speech and expression is also being hampered due to restriction on speed of Internet. The Court weighed it lower than security of the nation. The degree to which this right is hampered hardly affects normal people. People can send and receive messages, photos and videos even if Internet is slow. It affects only the people promoting terror activities in the valley. The Court should have hit the bull’s eye but it missed by not talking about these Rights separately.
Furthermore, on this issue, the court should have crystallized that how the freedom of speech and expression, if provided through 4G, can be detrimental to the security and national interests of the country. The faster circulation of videos, photos and even messages can be slowed down to a considerable extent by restricting the speed of the internet and may help the Intelligence units in Controlling terror activities.
The most important issue which gets ignored in this battle of National security v/s Human Rights, Rights of Students get ignored. They do not get efficient access to Education. The Attorney General in his claim said that students of Jammu and Kashmir are getting education through 16 DD channels and through Radio. The government is also aiding their ailing Right to Education by granting them free books and copies. But looking at all these measures from the shoes of students, it becomes extremely difficult to self-educate themselves by merely reading books. The teachers teaching virtually on DD channels cannot cater to the needs of each distant individual. There comes the importance of teachers. In the present phase where knowledge cannot reach the doorsteps, technology makes it possible for students to reach to education. But owing to low speed of Internet, students of the valley are unable to connect with video lectures.
People preparing for National Level exams like NEET, IITJEE, UPSC etc emerge as the sufferers of greatest distress. These sufferings are so long-lived and based on their domicile. Although, Unacademy and You tube mini can be accessed through 2G Internet as well. Article 15 of the Constitution says that No citizen shall be deprived on the basis of his place of birth. But here in this context, both executive and Judiciary have failed to recognise right to equality.
The Court should have tried to establish the nexus between government’s determination to provide education in the time of pandemic and deteriorating need of internet. It should have provided some effective measure to balance both the rights.
Moreover, for past 130 days, Kashmir underwent complete denial of Internet Services. Their struggle for Right to Internet does not end here. On many occasions, in the past they were denied access to most of the cites and were allowed to access only white-listed sites. They were not even allowed to access social media for certain time. The importance of social media in life of humans has grown to this extent that it has become the major source of transmission of Information.
The restriction on speed of Internet also hampers Right to business of the people. Right to business, the court should have asked the petitioners to specifically point out that how local business can be adversely affected due to non-availability of high-speed internet. Because, generally all sort of business activities can be done through 2G internet too. Even the negative impact on the maintenance and access to robust call features required for business can be mitigated to some extent through the unlimited calling plan of various mobile networking companies. Here, too the Court was adamant in not dealing with the issue separately.
This case dealing Infringement of Rights may appear correct at certain points. However, these are not the only flaws in the judgment. If we look at other flaws and consider the opposition’s argument then it will push us to the extent of saying that the whole judgment of the court was biased.
The petitioners in their arguments emphasized that the government has failed to give even a rational nexus between internet and terrorism. The government in order to deal with this argument provided several affidavits .The first such Affidavit said that restoration of 4G data serviceswill substantially increase the use of social media and other platforms in uploading/downloading of videos and other propaganda material and their faster circulation, deteriorating the law and order situation in the valley.[3]The dispensation told the top court that even when internet services were restored only with white-listed URLs, it was found that miscreants were using different VPNs but because of low speed mobile data services, were not able to upload files of heavy data containing incriminating and objectionable videos.[4]The affidavit said that even the top court has not been spared of the ill effects of habitual fake news propaganda which took place very recently, involving a fake order purporting to be a Record of Proceeding of this court. It had falsely reflected that administration of J&K has been ordered to take a quick review within 24 hours to restore full internet communication in the region.[5]
On examining the validity of affidavits filed by the Government, the restriction seems holding some value. United Nations remarked that internet can be used for terrorist purposes. It has said that terrorist groups can exploit the internet through several means namely propaganda (including recruitment, radicalization and incitement to terrorism), financing, training (through videos etc.), planning (including through secret communication and open-source information), execution, and cyber attacks. United nations quoting European commission accepted that “The process of recruitment and radicalization commonly capitalizes on an individual’s sentiments of injustice, exclusion or humiliation.”[6] Many criminal justice practitioners have indicated that almost every case of prosecution of terrorism involved the use of Internet technology. In particular, planning an act of terrorism typically involves remote communication among several parties. A recent case from France, Public Prosecutor v. Hicheur[7],illustrates how different forms of Internet technology may be used to facilitate the preparation of acts of terrorism, including via thorough communications within and between organizations promoting violent extremism, as well as across borders.
But, certainly it cannot be said that, people are not suffering in Jammu and Kashmir. After the coming of first case of Corona in Jammu and Kashmir, one of the doctors tweeted that “This is so frustrating. Trying to download the guidelines for intensive care management as proposed by docs in England.24 Mbps and one hour. Still not able to do so…”[8]. This is also a plight of a lot of students who failed to register to the colleges due to slow internet speed.[9]
In this case court forget to from review Committee before giving its verdict. In such situations, according to the judgement in Anuradha Bhasin v. union of India, a review committee must be formed to review the situation by the Government. But in this case even in present situation no such committee was formed. Moreover, the formation of this committee was violative of points of Natural Justice. The principles of Natural Justice say that no person can be a judge in their own case. But, in this case a review committee of Secretaries at both national and state level were appointed to look into the wrong committed by executives only. The Court seems to have forget about the importance of Natural Justice. The time limit for the formation of the committee was not set. Moreover, the restrictions were applied before setting up any Review committee. This Judgement of the Court was violative of the earlier rule laid down. This committee also failed to secure adequate representation of the people of the valley. The Telecom Suspension Rules laid down that if Central or State government want to put any restriction then they should first Constitute a review Committee which they failed to do. Hence, a law was broken. Moreover, the special committee constituted consisted 2 Central Government officers and 1 officer from the valley. Therefore, this committee lacks equal representation and creates greater apprehensions about decision because executive may favour Legislature, as trends have been.
The court completely ignored the suggestions like restricting Internet in certain areas. Despite these infiltrations on Right to Internet, we are unable to control infiltration by terrorist. The present killing of BJP leader in the valley is proof of ineffectiveness of this restriction on speed of Internet.
It can be easily inferred that a lot of people are suffering because of the ban of high-speed internet. Therefore, the court should have backed its decision and provided a deeper insight into the reason behind its decision. Moreover, the court failed to convey its views on all the questions raised.
By-
Ananya Saxena
Dharmashastra National Law University
Aryan Mewada
Dharmashastra National Law University
[1]https://indiankanoon.org/doc/82461587/
[2]https://www.bbc.com/news/10537286
[3]https://economictimes.indiatimes.com/news/defence/terrorists-inciting-people-via-fake-news-jk-tells-sc-opposes-4g-internet-in-ut/articleshow/75489465.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[4]https://economictimes.indiatimes.com/news/defence/terrorists-inciting-people-via-fake-news-jk-tells-sc-opposes-4g-internet-in-ut/articleshow/75489465.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[5]https://economictimes.indiatimes.com/news/defence/terrorists-inciting-people-via-fake-news-jk-tells-sc-opposes-4g-internet-in-ut/articleshow/75489465.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
[6]European Commission, Expert Group on Violent Radicalisation, “Radicalisation processes leading to acts of
terrorism” (2008). Available from www.clingendael.nl/publications/2008/20080500_cscp_report_vries.pdf.
[7]Judgement of 4 May 2012, Case No. 0926639036 of the Tribunal de Grande Instance de Paris (14th Chamber/2),
Paris.
[8]https://twitter.com/DrIqbalSaleemM1/status/1240632850812030977
[9]https://thewire.in/rights/kashmir-2g-internet-students
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