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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 Professionals were
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 Law)
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 19(1)(g).

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 internet services”.

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 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 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.

Conclusion
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.

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