SC frames Special Panel to consider pleas for restoration of 4G internet in J&K UT

‘National security, human rights have to be balanced reasonably’
*Govt says cyber terrorism on rise in Kashmir valley

Mohinder Verma

JAMMU, May 11: Stating that compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir cannot be ignored and national security and human rights have to be balanced reasonably, Supreme Court today constituted a Special Committee headed by Union Home Secretary to consider the pleas for restoration of 4G internet services.
With this order, the Apex Court has disposed of three writ petitions filed by the Foundation for Media Professionals, Soayib Qureshi and Private Schools Association J&K challenging restrictions on the internet in the Union Territory of Jammu and Kashmir on various grounds.
“The fundamental rights of citizens need to be balanced with national security concerns, when the situation so demands. We are cognizant of the importance of these matters for the national security concerns and take the same with utmost seriousness to ensure that citizens enjoy life and liberty to the greatest possible extent”, Bench of the Supreme Court comprising Justices N V Ramana, R Subhash Reddy and B R Gavai observed.
Stating that national security concerns and human rights must be reasonably and defensibly adjusted with one another in line with the Constitutional principles, the Apex Court observed, “there is no doubt that the present situation calls for a delicate balancing looking to the peculiar circumstances prevailing in the Union Territory of Jammu and Kashmir”.
“The material placed before us indicate that cyber terrorism is on the rise within the Kashmir valley. Moreover, Government has brought to our notice that the Pakistani military in its Green Book-2020 has called for an information warfare on Kashmir after the revocation of special status of Jammu and Kashmir”, the Apex Court said.
While it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown. However, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored, the Apex Court said.
“The authorities in the Union Territory of Jammu and Kashmir have selected the 2G speed to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters to disturb the peace and tranquillity”, the Supreme Court further said.
Referring to its earlier judgment in which it held that the degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation, the Supreme Court said, “the common thread in the impugned orders is that these have been passed for the entire Union Territory of Jammu and Kashmir”, adding “although the present orders indicate that they have been passed for a limited period of time, the order does not provide any reasons to reflect that all the districts of the Union Territory of Jammu and Kashmir require the imposition of such restrictions”.
However, at the same time the Supreme Court said, “we do recognize that the Union Territory of Jammu and Kashmir has been plagued with militancy, which is required to be taken into consideration”.
Pointing towards the submission of the petitioners that the blanket orders have been passed for the entire Union Territory rather than for specified affected areas, the Apex Court said, “a perusal of the submissions made before us and the material placed on record indicates that the submissions of the petitioners in normal circumstances merit consideration. However, the compelling circumstances of cross border terrorism in the UT of J&K, at present, cannot be ignored”.
“Although the petitioners have argued that the orders passed by respondent reveal non-application of mind, however, it must be noted that the authorities have been taking steps towards easing of internet restrictions taking into account the prevailing circumstances”, the Supreme Court said, adding “initially only white-listed websites were allowed, before internet access to all websites was provided on broadband, and finally to post-paid and verified prepaid mobile users as well, although at 2G speeds”.
The Apex Court further observed, “the Union of India has submitted that continuous infiltration, foreign influence, violent extremism and issues of national intergrity are prevalent in the Union Territory of Jammu and Kashmir, which are serious issues.”
Pointing towards its earlier judgment that every order passed under Rule 2(2) of the Telecom Suspension Rules restricting the internet is to be placed before a Review Committee which provides for adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored, the Apex Court said, “since the issues involved affect the State and the nation, the Review Committee which consists of only State level officers may not be in a position to satisfactorily address all the issues”.
Accordingly, the Apex Court found it appropriate to constitute a Special Committee at the national as well as State level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the UT of J&K.
The Special Committee shall be headed by Secretary, Ministry of Home Affairs and comprised of Secretary, Department of Communications, Ministry of Communications and Chief Secretary of J&K UT.
“The Special Committee is directed to examine the contentions of, and the material placed by the petitioners as well as the respondents. It shall also examine the appropriateness of the alternatives suggested by the petitioners regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise regarding the same, in terms of our earlier directions”, reads the order of the Apex Court.
Earlier, Attorney General contended that courts should not step into issues of national security which are best left to those in charge of policy making. The Attorney General, while relying on some judicial pronouncements, submitted that the claims of fundamental rights have to be examined against the larger public interest of protecting the security of the State, wherein, while balancing the conflicting rights, the security of the nation should triumph against the fundamental rights of the citizens.
The Solicitor General highlighted that over 108 terrorist incidents have taken place in the recent past, between August 05, 2019 and April 25, 2020 in the Union Territory of Jammu and Kashmir and the current situation in the Union Territory is very grave and volatile.
“The authorities have calibrated the restrictions based on the requirement so as to reduce the misuse of internet and that the measures adopted by the authorities are reasonable”, the Solicitor General further submitted.