JUDICIAL ABDICATION DURING THE COMMUNICATION LOCKDOWN AT JAMMU AND KASHMIR
Updated: Mar 14, 2021
The Union Territory of Jammu and Kashmir is under an internet shut-down for about a year now. In this blog, the author attempts to analyze the Human Rights violations that are caused due to the communication lock-down especially during a pandemic. The Government has imposed the orders under the garb of National Security. The article also analyzes the repercussions caused after the decision of the Supreme Court that delegated the authority to review the orders of the executive again to an executive body, turning a deaf ear to the pleas of the people of the territory.
The Indian government imposed a complete communication blackout in Jammu and Kashmir, anticipating adverse reactions from the public as an aftermath for the dilution of Article 370 which stripped the region’s special status. On 4th August 2019, mobile networks, internet connectivity, and landlines were disabled under the Temporary Suspension of Telecom Services Rules that enables the Government to suspend telecom services for public safety. The internet shutdown was scrutinized by the Supreme Court in Anuradha Bhasin v. UOI on 10th January, to conclude that any blanket suspension order in terms of duration or geographic application would be constitutionally impermissible and that the restrictions are to be published and reviewed periodically.
Following the decision, a review committee periodically reassessed the suspension orders to gradually narrow the scope of the lockdown. However, internet connections were only partially restored with high-speed service restricted to fixed lines. Post-paid mobile connections have low bandwidth speed of 2G and most pre-paid connections have no internet service.
Violation of Human Rights
Petitions were again filed before the Supreme Court by media professionals, school associations and private citizens to quash orders restricting internet services to 2G. The petitioners relied on the judgment of Anuradha Bhasin to argue that the blanket restriction on 4G internet across the region would have deterrent effects on the rights to free speech and expression, education, freedom of trade, and health.
As the rest of the world depends on virtual meetings and transactions that are impossible with 2G connections, the restriction is a question of access rather than speed. Restricting the internet during a pandemic could be deadly, as access to information becomes crucial. This further hinders medical efforts to contain COVID-19 contagion and affects support services and online businesses. The restriction has crippled students from accessing educational material when classes in physical classrooms are not taking place. Even the J&K High Court has found it difficult to function under the lockdown. The government maintained that reducing internet speed was done to counter terrorism in the interests of national security, as high-speed internet was a facilitator of terrorism in the territory.
The Supreme Court of India in Foundation for Media Professionals v UT of J&K on 11th May 2020 refused to restore 4G internet services and chose to accept that national security has to be defensibly balanced with human rights. Refraining from deciding whether the restriction was constitutionally valid, the Court again referred the matter to a three-member special committee to examine the contentions of the parties.
Abdication of Judicial Responsibility by the Apex Court
In the present situation where high-speed internet services have become indispensable, the order has been passed without considering the gravity of human rights violations involved. The Court had absolved from its duty to examine whether the rationale for restricting the speed of the internet to limit terrorism is legitimate and is the least intrusive measure.
Delegated the evaluation of executive action to the executive
Though the prohibition of 4G Internet was found to be disproportionate, the Court did not remedy the wrong. Instead, it had delegated the decision-making to another newly formed committee, this time consisting of a combination of national and state-level bureaucrats. The decision on whether there is a violation of rights has been consigned to the very authority that imposed the restrictions in the first place, contravening the age-old principle that no person shall act as a judge in his own cause. The Court also did not ask the committee to report back with its analysis.
National security versus human rights
While the principal defense of the Government was the rise of infiltration and militancy through the internet, it becomes prudent that restrictions must be imposed only in areas where activities of such nature are being carried out as opposed to a ban on 4G services to the entire region. The government was also unable to prove that 2G internet deprives the terrorists of what 4G facilitates except that it repeatedly underscored that 4G is faster than 2G. It must be understood that any infrastructure or instrument of communication and public utility can be used by the terrorists hence, imposing a blanket ban at the expense of the rights of the citizens would not be the solution.
Author -Bagavathy Vennimalai
Student at School of Excellence in Law, Tamil Nadu Dr Ambedkar Law University.