Sakina Tashrifwala
Published on: October 18, 2022 at 19:53 IST
The Supreme Court of India‘s Division Bench issued notice on Monday on a writ suit demanding uninterrupted and ongoing 4G mobile internet services throughout the Union Territory of Jammu and Kashmir.
According to the petition, the petitioner is a non-profit organisation called Private Schools Association J&K, which represents “the interests of nearly 3800 member schools” throughout the Union Territory.
The Jammu and Kashmir Home Department has been charged with “severe and ongoing infringement of pupils’ fundamental right to study,” as the Department has allegedly maintained “slowing down mobile internet speed to 2G.”
These internet crackdowns have resulted in a “digital apartheid in access to education,” the petitioners say, against the backdrop of the pandemic’s breakout, which forced a move to online instruction.
On behalf of the petitioner-society, Advocate Shadan Farasat briefed the Bench of Justices B.R. Gavai and B.V. Nagarathna, of the Union Territory’s “ground reality.”
In doing so, he referenced the statute established in Anuradha Bhasin vs. Union of India, in which the Supreme Court held that an indefinite suspension of internet services would be illegal and that orders for internet shutdown must meet the necessity and proportionality standards.
Farasat stated,“There have been orders issued on a regular basis by the Union Territory that are in contravention of the Anuradha Bhasin principles; in the meantime, much of the teaching that is taking place, even today, is a mix of online and physical classes; that is the reality of Jammu and Kashmir.”
Justice Gavai noted that a Special Committee had been established by a Supreme Court ruling in Foundation for Media Professionals vs. U.T. of Jammu and Kashmir, which was asked to investigate “the prevailing circumstances” and decide “the necessity of the continuance of the restrictions” as soon as possible. He stated –
“However, we had directed that a committee be formed to investigate the requirement of uninterrupted internet services.”
Farasat, on the other hand, contended that the Department’s instructions were in breach of the Supreme Court’s previous orders –
“That is not occurring on the ground; the orders that are currently being issued are highly problematic, whereas in Anuradha Bhasin, the Court mandated a reasoned order.”
Farasat proceeded to take the Court through a recent Department order made on October 3, 2022 –
“The logic is extremely wide. The order speaks to ‘anti-national elements, “miscreants,”…the It’s broadest reasoning. What is the particular premise on which mobile data services are suspended? How would any court judicially assess this?”
When queried about the petitioner’s “particular grievance,” Farasat admitted that the writ, which sought the reinstatement of 4G internet services, had become ineffective because high-speed internet was formally restored in the Union Territory in February 2021, after an 18-month outage.
However, it was stated that internet crackdowns were regular, jeopardising children’s education in Jammu and Kashmir and infringing Articles 14, 19, 21, and 21A. Farasat stated –
“These rules are still not being followed; we use phones for everything nowadays, including communication with parents.”
Gavai had a question –
“Why do you need data when you can make calls and send messages?”
Farasat replied –
“There is trouble in sending messages and making calls due to the suspension of network services; also, most of the teaching that is taking place today is still hybrid; there is a difficulty.”
Farasat finished by reminding the Bench that a similar matter was pending before the Supreme Court and asking that the current petition be heard alongside it –
“The same issue is being brought in an IA. This Court has ruled that because Anuradha Bhasin was a three-Judge Bench, another three-Judge Bench must be formed and then directed to the Chief Justice. All I am asking is that because this is an identical matter, it be tagged together with it.”
The Bench issued the direction to give notice orally, requesting responses from the respondents impleaded in the petition, which included the Home Department of the Government of Jammu and Kashmir and the Union Ministry of Home Affairs.
The Internet Freedom Foundation assisted with the petition’s legal representation.