Srinagar: The Jammu and Kashmir government Wednesday told the Supreme Court that the right to access the internet is not a fundamental right, but an enabler of rights. In saying this, it indicated that high speed mobile internet is unlikely to be restored in the union territory anytime soon.
The J&K government's submission comes after the Supreme Court, in a landmark judgment in January this year, had declared access to the internet a fundamental right.
On 4 August last year, a day before the Narendra Modi government scrapped the special status of Jammu and Kashmir (Article 370 of the Constitution) and bifurcated the state into two union territories (the other being Ladakh), all forms of communications were blocked. Gradually, the administration lifted restrictions on all communications, but restored only 2G internet connectivity for mobile phones on 25 January. The government reviewed its decision periodically, but kept the speed at 2G.
On 9 April, a body called Foundation for Media Professionals filed a plea in the Supreme Court, seeking the court's direction to restore 4G internet service. The plea mentioned the government's 26 March order, which had reiterated the decision to restrict the speed. The bench of Justices N.V. Ramana, R. Subhash Reddy and B.R. Gavai had then issued a notice to the government, asking for its response.
The response
The government's submission to the court was filed on behalf of the principal secretary, home department, by Shashi Juneja, additional standing counsel.
The submission read: “It is submitted that the right to access the internet is not a fundamental right and thus the type and breadth of access for exercising the right to freedom of speech and expression under Article 19(1)(a) and/or to carry on any trade or business under Article 19(1)(g) of the Constitution of India (CoI) through the medium of internet can be curtailed.”
It said the restoration of 4G mobile data services will “substantially increase the use of social media and other online platforms in uploading/downloading of videos and other propaganda material and their fast circulation, with resultant deterioration in law and order situation in Kashmir Valley”.
It added: “Current discourses of social media campaigns infer that Pak handles are aiming to incite violence amongst College and University students.”
The government further cited the launch of militant organisations, the incident of 500 local residents attending the funeral of a slain Jaish-e-Mohammed commander, 108 terrorist-related incidents since 5 August, and rumours related to the health of separatist leader Syed Ali Shah Geelani as some of the reasons for the continued ban on 4G internet.
“It is submitted that advisories/steps taken against the misuse of mobile data services which are prevalent in other parts of the country may not be practical and definitely not suffice in case of J&K,” the government said.
Reduction of speed not curtailment of rights
The plea had contended that the action of the J&K government was in violation of Articles 14 (right to equality), 19 (freedom of speech) and 21 (right to life) of the Constitution.
While declaring internet as a fundamental right, the Supreme Court in January had observed: “We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.”
However, the government submitted to the court that rights under Article 19(1) (a) and (g) of the Constitution cannot be said to be curtailed by reduction in the speed of the internet.
“The sovereignty and integrity of India, the security of the state, public order or incitement to an offence, would certainly warrant curtailing the freedom of speech and expression, under Article 19(2),” it said.
“Likewise, the right to carry on any trade or business can be restricted in the interest of general public under Article 19(6) of our Constitution, which, it is submitted would include public order, public health, public security and objects mentioned in the Directive Principles of State Policy.”
The government submitted that the internet was an “enabler of rights and not a right in itself”, and that “the present 2G speed of internet does enable one to create, access, utilise and share information and knowledge”.
Current speed enough to deal with Covid-19 crisis
The Foundation for Media Professionals had contended that well-functioning internet, especially in times of a pandemic such as Covid-19, is an essential part of digital infrastructure required to make the right to internet access an effective reality.
However, the J&K government contended that the current internet speed, combined with broadband internet is enough to deal with the Covid-19 crisis effectively.
“WhatsApp chatbots and health infographics can operate easily within the low speed internet range (2G-Bandwidth). Health related and other important information regarding Covid-19, including documents and advisories issued by the government on websites, is being accessed by over 100,000 professionals in various health facilities in J&K through fixed line high-speed internet,” it said.
“The information regarding Covid-19 is also available on various social media platforms which can be easily accessed on low speed 2G internet,” it added.
“Apprehensions of the petitioner that medical professionals and the general public are not able to access latest studies, manuals on treatment and management of Covid-19 because of 2G internet speed (are) misconceived.”
The government also said that for any upload/download of a typically heavy data file, the present speed restrictions increase the time taken or lead to failure, “frustrating the evil designs of terrorists”.
