COVID & 4G Restoration in Jammu & Kashmir

On August 11th, the Court held that there was no case of contempt for the Special Committee to take a decision regarding internet in J&K.

In April of this year, the Foundation for Media Professionals (FMP) approached the Supreme Court intending to ease internet restrictions in the Union Territory of Jammu and Kashmir (‘J&K’). The FMP is a non-profit society dedicated to defending the freedom of the press. It contended that the Union’s decision to keep in place existing internet restrictions during the COVID-19 outbreak violated the rights to health and education. It requested the Court to restore 4G mobile internet in J&K.

As we wrote about in May, the Supreme Court ultimately decided against intervening in what it labelled a national security issue. However, the Bench comprising Justices N.V. RamanaSubhash Reddy and B.R. Gavai constituted a Special Committee to review the internet suspensions. The Special Committee comprises:

  1. Secretary, Ministry of Home Affairs, Government of India
  2. Secretary, Ministry of Communications, Government of India
  3. Chief Secretary, Union Territory of Jammu and Kashmir

In the latest development this week, the Court heard a contempt petition filed by FMP against the Union Home Secretary, for failing to constitute this Special Committee. The Union has denied this allegation and claims that the Special Committee has indeed been constituted and has already reached its decision. Justice Ramana’s Bench has directed the Union to file a reply affidavit by next week.

In this short post, we revisit the 11 May Order and summarize the oral arguments in the contempt petition.

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A violation of fundamental rights?

When FMP approached the Court in April, its main argument was that the suspension of the internet during the on-going pandemic violated the fundamental rights to health and education.

On the right to health, FMP submitted that enforced social-distancing has made a speedy internet connection vital for accessing medical services. They contended that denial of such speedy internet access prevented citizens from actualizing the fundamental right to health.

Regarding the right to education, FMP pointed out that the restrictions have negatively affected students in Jammu and Kashmir. The slow internet speeds have prevented them from accessing e-learning services and has made online video classes an impossibility, FMP submitted. They argued that this amounted to a violation of the fundamental right to education since schools are closed.

Anuradha Basin – disproportionate restrictions

To substantiate their fundamental rights claims, FMP argued that the restrictions violated the legal framework outlined by the Supreme Court earlier this year in Anuradha Bhasin. In Anuradha Bhasin, Justice Ramana had held that any state-imposed internet restriction must be proportionate. In particular, restrictions must be commensurate – temporally and territorially – to the aim sought to be achieved by said restrictions.

While the Union argued that the restrictions were necessary to maintain national security, FMP contended that the restrictions were excessive. Notably, FMP submitted that terrorist activity had been declining ever since the Union had begun to ease restrictions. Further, FMP argued that the Union cannot issue blanket restrictions across the entire Union Territory, given that some areas have seen no terrorist activity.

Court forms Special Committee

Ultimately, Justice Ramana’s Bench decided that it could not direct the Union to ease restrictions. Drawing from the framework established in Anuradha Bhasin, the Bench held that national security justified restrictions on the access to speedy internet. Further, it pointed out that the Union had been slowly easing restrictions.

Nevertheless, it expressed some concern over whether the restrictions were proportional. In particular, it pondered whether the Government could consider restoring full access in select regions. Since the Court has limited jurisdiction in matters of national security, the Bench directed the Union to form a Special Committee to review the restrictions.

Notably, this Special Committee is much more powerful than the Review Committee envisaged in Anuradha Bhasin. In Bhasin, Justice Ramana had held it was sufficient for a committee comprising State-level officials to review any orders passed under the rule 2(2) of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. By contrast, the Special Committee comprises the Union Home Secretary, Union Communications Secretary and J&K Chief Secretary.

Justice Ramana directed the Special Committee to consider all the contentions and materials submitted by the FMP, before concluding. However, he never set a deadline for the Committee.

Contempt Petition

Following the judgment, internet restrictions remained in place and nothing in the public domain indicating that the Special Committee had met. As a result, on June 8th, FMP filed a contempt petition against Home Secretary Ajay K. Bhalla, asserting that he had failed to comply with Supreme Court’s 11 May directions.

A month later, Justice Ramana’s Bench heard Senior Advocate Huzefa Ahmadi present oral arguments on behalf of FMP. The Union sought to rubbish Sr. Adv. Ahmadi’s submission by contending that the Special Committee had already met. Attorney General K.K. Venugopal asked, ‘how is there contempt if the Committee already exists?’

Appearing cautious, Justice Ramana refused to issue a notice in the contempt petition and stressed that the decisions of the Special Committee do not require to be in the public domain. Nevertheless, he directed the Attorney General to file a reply affidavit on behalf of the Home Secretary within a week.

In an order dated July 28th, 2020 the bench listed the matter for August 7th, 2020. On the 7th of August the Solicitor Generals request for adjournment till 11th August was granted.

In the final order on the 11th of August, the bench referred to the guidelines laid out in the additional affidavit filed by the Solicitor General on August 10th. In the affidavit, the findings of the Committee constituted were presented, which decided upon an extremely gradual and cautious approach to restoration of high-speed internet in the region. The Committee then found that there was no case for contempt that was made out.

On view of this affidavit, the bench closed the proceedings of the contempt petition.