Internet: A fundamental Right
Introduction: Introduction: SC in plea for restoration of 4G in J&K- Internet is
not a fundamental right (news)
In the light of the growing pandemic Covid-19 Outbreak, where the accessibility
to the Internet can be a matter of life and death and the need for balancing
human rights and national security. A plea on March 29, seeking restoration of
4g internet in the Union Territory of Jammu and Kashmir was filed by Paranjoy
Guna Thakurta the president of the organization, Foundation for Media
Professionals in the Supreme Court, quoting the rationale that the contemporary
rule contravene the fundamental right of healthcare and education of the
citizens and Where every student in the country is availing the benefit of
online class and where almost every citizen has online access to the Doctors the
people of Jammu and Kashmir are restricted to 2g internet service pertaining to
the order by the administration of the Union territory of Jammu and Kashmir, the
administration of Jammu and Kashmir on 30th April informed the Supreme Court of
India that it can restrict the freedom of speech and the right to trade by way
of internet and internet is not a fundamental right.
The petition was represented by advocate Shadan Farasat and was heard through
video conferencing by a bench of justice B R Gavai and R Subhash Reddy led by
justice N V Ramana.
Why is it banned?
With almost 176 over the past years and 51st in the year 2019 the Union
Territory of Jammu and Kashmir has been subjected to Internet suspension, with
the latest being the internet suspension in the month of August last year.
The Union Territory of Jammu and Kashmir which majorly had been under scrimmage
between the militants and the security forces and in light of the Pulwama attack
by Jaish-e-Mohammed which happened on February 14, 2019. In order to avert
further terror attacks the government decided to suspend the Internet and mobile
data services in Jammu and Kashmir in addition to it section 144 of the Indian
Penal Code restricting unlawful assembly was imposed along with this the Article
370, giving special status to Jammu and Kashmir was scrapped and major
politicians were put under house arrest.
The call for the mobile data and internet suspension was not only an obligatory
step towards state security but national security at large with the vision of
restricting the communication between militant groups.so that the major
terrorist attacks can be averted.
Arguments in the plea
The six month long internet ban in the Union Territory of Jammu and Kashmir came
to an end with restoration/restriction on internet services to 2G
network.services. The petition restoring 4G in Jammu and Kashmir was filed in
response to the unreasonability of 2G network services. The petition alleged the
government's action of rectricting the network to 2G as violation of article
14,19,21,21A of the Indian Constitution, the right to equality, freedom of
speech, right to life and right to free and compulsory education respectively.
The main arguments highlighted by advocate Shadan farasat in behalf of the
petitioner Paranjoy Guna Thakurta/ organization, Foundation for Media
The unreasonability of 2G network service during this global pandemic
Coronavirus Outbreak resulting in restriction in communication between the
patient and the doctors relating to the present day medical guidelines and
counselling violating Article 21 (Right to Health) of the Indian Constitution.
Inability of the schools and the students to impart and grant online education
violating Article 21A (Right to Education) read with Article 14 (Equality before
Inability of the citizen of Jammu and Kashmir to continue their occupation by
working from home, violating Article 19(1)(g) (Right to carry on any
Occupation/Profession) read with Article 21 (Right to earn livelihood)
Inability to avail present day information by journalists violating Article
Pertaining to the arguments mentioned above the action of the government
violates Right to Internet access which not only is a basic human right, but a
fundamental right protected under Article 19 of the Indian Constitution.
Alongside the violation of basic fundamental rights by the government, the
petitioner also raised the order laid down in the recent judgement of Anuradha
Bhasin v. Union of India where the court held the judgement that the shutdown
order cannot be indefinite and the order should define/set out the exact period
of the shutdown. The court also laid down that “The order of the internet
shutdown should pass the proportionality test and to aid the committee in
establishing the proportionality the government must/should examine the exact
level of nation/state/public emergency prerequisite to shutting down the
Critical analysis and the reason behind the Supreme Court decision
The order of the Supreme Court took into account the reports and arguments
submitted and made by the respondent and the petitioner before the bench. The
court upheld that the current conditions due to the pandemic can not ignore the
fact that the external forces are trying to impair the nation's integrity giving
rise to the death of many habitants and security force personnels.
The Supreme Court examined the relevance of its order in the case of Anuradha
Bhasin v. Union of India which held that “the shutdown order cannot be
indefinite and the order should set out the exact period of the shutdown”
taking this into consideration the Supreme Court upheld that the order of the
administration of Jammu and Kashmir does not supply proper grounds for
imposition of the restrictions on all the district of Jammu and Kashmir.
The Court also highlighted another order of the Anuradha Bhasin judgement
“The order of the internet shutdown should pass the proportionality test and to
aid the committee in establishing the proportionality the government must/should
examine the exact level of nation/state/public emergency prerequisite to
shutting down the internet services” in response to this the Supreme Court
upheld that the administration passed the order for whole Union territory
instead of imposing on the required areas.
Taking into account the above mentioned considerations the Supreme Court in its
prior judgement in Anuradha Bhasin v. Union of India that all judgement made
regarding the curtailment of internet services defined under Rule 2(2) of the
Telecom Suspension Rules shall be put in front of a committee for Review of the
conditions for imposing restrictions.
Thus the Supreme Court of India on 11 May , 2020 gave its verdict on
foundation of media professionals v. Union territory of Jammu and Kashmir
directing the formation of a committee consisting of the secretary of department
of communication, government of india and the chief secretary of the Union
territory of Jammu and Kashmir led by the secretary of ministry of home affairs,
government of india to examine the arguments raised by the respondent and the
petitioner and to propose and advice replacements relating to restriction and
allowance of internet services where it is necessary.
The plea for restoration of 4G network services in the Union Territory of Jammu
and Kashmir, although cited appropriate arguments pertaining to violation of the
basic human right and fundamental rights vested to the citizens and the
violation of judgement passed by the Court in case of Anuradha Bhasin v.
Union of India.
But in the light of the terrorism and perilous background of Jammu and
Kashmir and major scrimmage between the millitants and the security forces the
government rejected the plea and formed a committee to look into and exaime the
present day siutation in the Union Territory of Jammu and Kashmir in order to
determine whether to continue the ristriction of 2G netork and data services.
Thus a valid and apparent question that arises out from the Supreme Court's
judgement amid the outbreak of the Coronavirus pandemic is whether the public
security in India prevails over the basic human and fundamental rights.
Law Article in India
You May Like
Legal Question & Answers
Please Drop Your Comments