(CASE COMMENTARY

FOUNDATION FOR MEDIA PROFESSIONALS V UNION TERRITORY OF JAMMU

& KASHMIR. 2G IS NOT VIABLE DURING THE PANDEMIC.

EQUIVALENT CITATION: 2020 SCC 453.

BENCH: RS REDDY, NV RAMANA and B.R. GAVAI.

CASE NO.- WRIT PETITION (CIVIL) OF 2020 (D. No. 10817 OF 2020),
WRIT PETITION (CIVIL) OF 2020 (D. No. 10875 OF 2020 AND WRIT
PETITION (CIVIL) OF 2020 (D. No. 10904 OF 2020).

PETITIONERS- FOUNDATION OF MEDIA PROFESSIONALS, SOAYIB

QURESHI AND PRIVATE SCHOOLS ASSOCIATION JAMMU AND
KASHMIR.

RESPONDENT- UNION TERRITORY OF JAMMU AND KASHMIR.

ABSTRACT

When the world was moving at the speed of 4G and getting ever closer to 5G, on the other
side citizens of Jammu and Kashmir were living their life without any internet service or 145
days, which later got upgraded to 2G speed. When a state in the world’s largest democracy
sees a complete internet shutdown for months, in the age of 5G, only to get upgraded to 2G
speed, it calls for worldwide criticism. But instead, nothing happened and the citizens
continued to suffer the wrath of unjust methods of the Indian government. the multi-faceted
and targeted denial of digital rights is a systemic form of discrimination, digital repression
and collective punishment of the region’s residents, particularly in light of India’s long
history of political repression and atrocities. The promise of lasting peace, freedom and
justice for the people of Jammu & Kashmir is inextricably tied to digital and human rights in
the region. This paper deals with the commentary of the landmark case of Foundation of
Media Professionals v Union Territory of Jammu and Kashmir. This case primarily revolves
around the challenge of the government orders, maintaining 2G internet speed in the Union
Territory, when there was complete lockdown in the country on account of the health crisis
caused by the COVID-19 pandemic. The write-up further dwells into unpacking of the legal
frameworks of the shutdowns and also critically analyses the climate of deniability and lack
of accountability for violations is compounded by the multiplicity of legislation, broad
discretionary executive powers, and the lack of effective judicial redress.

Keywords: Democracy, Unreasonable, Restriction, Internet, Suspension

INTRODUCTION

The petition filed by the Foundation of Media Professionals, was primarily regarding the
restriction of mobile internet speed in the erstwhile state of Jammu and Kashmir by the
administration. Along with them, there were other parties, namely Soayib Qureshi and
Private Schools Association of Jammu and Kashmir, 1 who had filed petitions demanding
restoration of 4G internet connection in the region, which had been rescinded by the Central
government back in August 2019.2 It primarily portrays the struggle by of the people of
Jammu and Kashmir, for their right to life and human dignity that citizens in other states of
the country enjoy.

BACKGROUND

Jammu and Kashmir was administered by India as a State from 1954 to 2019, when the
special status accorded by Article 3703 was removed by the Parliament of India. It was
reorganised into two Union Territories, Ladakh and Jammu and Kashmir, from 31 October
2019.4 Since then, the region has seen an exponential increase in military presence and
witnessed the longest suspension of internet services in a democracy, among several other
restrictions.

The unreasonable internet shutdown was later challenged in the Apex Court in the case of
Anuradha Bhasin v Union of India5 in January 2020, wherein the Court directed that
restrictions on internet services need to be administered only after proving its necessity and
the proportionality for the said action. This imposes restrictions on the fundamental rights of
the people. The Apex Court also directed the Union Government to periodically review its
internet suspension orders and hoped for the non-permanence of the orders.6 But after review
1
FOUNDATION FOR MEDIA PROFESSIONALS V. UNION TERRITORY OF JAMMU AND KASHMIR & ANR., GLOBAL
FREEDOM OF EXPRESSION, 2020, https://globalfreedomofexpression.columbia.edu/cases/foundation-for-media-
professionals-v-union-territory-of-jammu-and-kashmir-anr/ (last visited February 11, 2021).
2
Poulomi Ghosh, Better late than never, tweets Omar Abdullah as 4G services restored in J&K, HINDUSTAN
TIMES, (Feb. 5 2021, 8:31 p.m.), https://www.hindustantimes.com/india-news/4g-mobile-internet-services-
being-restored-in-entire-jk-101612534549628.html.
3
INDIA CONST. art. 370, removed by Constitution (Application to Jammu and Kashmir) Order, C.O. 272, 2019.
4
PTI, Jammu Kashmir Article 370: Govt revokes Article 370 from Jammu and Kashmir, bifurcates state into
two Union Territories, THE TIMES OF INDIA, (Aug. 5 2019, 05:13 p.m.),
https://timesofindia.indiatimes.com/india/article-370-to-be-scrapped-jk-will-ceases-to-be-a-state-2-union-
territories-created/articleshow/70531899.cms.
5
Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
6
The Wire Staff, Kashmir: Indefinite Suspension of Internet Not Permissible, Review Orders in a Week, Says
SC, THE WIRE, (Jan. 10 2020), https://thewire.in/law/supreme-court-kashmir-internet-suspensionjudgment.
and adjustments, the government restricted the mobile internet speed to 2G. It was challenged
by Foundation of Media professionals in Foundation for Media Professionals v. Union
Territory of Jammu and Kashmir,7 a not-for-profit society fighting for press freedom, in the
Supreme Court. They contended that this was violative of the directions prescribed under the
Anuradha Bhasin judgement and the Temporary Suspension of Telecom Services (Public
Emergency or Public Safety) Rules, 2017 (hereinafter ‘the Suspension Rules’).

ISSUES DISCUSSED

There were several issues raised in the petition. They were:

a) Whether the restriction on internet services is a violation of the fundamental rights of

the people of Jammu and Kashmir and whether this action could be justified?
b) Whether there is a nexus between rising terrorism and internet restriction?
c) Whether reducing the internet speed would help in curtailing the spread of terror
related information?

PETITIONERS’ CONTENTIONS

1. The argument by the petitioners was based on the fact that during the COVID-19
pandemic, there was complete lockdown in the entire country and the internet
restrictions on the residents of Jammu and Kashmir was unreasonable as it infringed
their basic rights, including right to health, right to education, right to trade and
business and freedom of speech and expression.
2. The petitioners further submitted that the right to access the internet, gains even more
importance due to the pandemic situation. They made their point by stating that the
fulfilment of the basic right to health of the people highly depends on easy access to
speedy internet, since it helps in availability of medical information and containment
strategies. The denial of these rights violates not only people’s fundamental right to
information, but also their fundamental right to health.
3. It was also contended that the restrictions imposed upon the speed of internet affects
the right to education of the children of Jammu and Kashmir. Due to the slow internet,

7
Foundation of Media Professionals v. Union Territory of Jammu and Kashmir, [2020] SCC 453.
 they were not able to gain access to e-learning resources, making it difficult for
students preparing for various competitive exams as well.
4. Then it was submitted that the Respondent’s actions violate the directions given by
the Hon’ble Supreme Court in the Anuradha Bhasin case. The actions have also
violated the Temporary Suspension of Telecom Services (Public Emergency or Public
Safety) Rules, 2017, since no review committee was set up by the Respondent.
5. The blanket ban of internet services also clearly indicates that there had hardly been
any application of mind. The Respondent has failed to demonstrate any kind of
rational nexus between restriction of internet speed and the security of the nation.
6. The petitioners have submitted that since the introduction of the internet services, the
terrorist activities have reduced rather than increasing. They pleaded that the
Respondents can consider restricting the internet only in problematic areas i.e., areas
with prevalent terror activities, or they can provide 4G internet in certain regions of
the union territory on a trial basis.

RESPONDENT’S CONTENTIONS

1. The learned Attorney General, Mr. K.K. Venugopal, represented the respondents. He
stated that the Courts in the country should not be getting themselves into matters of
national security, since it comes under policy making jurisdiction of the Government.
[referring to Zamora case8, where it was held that, all those matters upon which the
Court is authorised to proceed are, or arise out of, acts done by the Sovereign power
in right of war. It follows that the King must directly or indirectly be a party to all
proceedings in a Court of Prize. This Judgement was delivered by Lord Parker for the
Judicial Committee of the Privy Council, April 7, 1916, in the appeal from the prize
court's decision in the case of the "Zamora", printed in "Lloyd's List," April 10.
2. He also submitted that the claims of restriction of fundamental rights need to be
examined in line with national security interests. It needs to be proved that the
security of the nation is paramount to the fundamental rights of the citizens.
Moreover, the Union Territory has been subjected to terrorist acts for a long time, and

8
Part Cargo Ex Steamship Zamora v. High Court of Justice Probate, Division and Admiralty Divisions, (1916)
2 AC 77 (PC).
 to prevent the spread of terror information it would not be possible to make 4G
internet services completely available in the region.
3. Learned Solicitor General, Tushar Mehta, fervently opposed the petitions and said
that the authorities in the Union Territory have strictly followed the directions passed
by the Apex Court in Anuradha Bhasin.
4. The information regarding the COVID-19 situation was readily made available on
government websites, social media sites, and other applications developed by the
Respondent, which could easily have been downloaded via 2G speed provided
throughout the region. Moreover, there has been no restriction placed on the MAC
binding system for internet service.
5. Documents and advisories have been accessed by almost 1 lakh health professionals
in the region through the MAC binding system. The authorities have also made efforts
in broadcasting important information through several radio channels, satellite TVs,
and local cable networks. Around 1.6 lakh pamphlets, and 90000 posters in English,
Urdu and Hindi were also distributed among the masses.
6. In case of issues raised regarding the children’s Right to Education, that too has been
catered to. Lessons are being taught on 16 Doordarshan and radio channels. The
authorities have also initiated distribution and delivery of school textbooks of up to
elementary level, to students meeting this eligibility criteria.
7. The Solicitor General also stated some facts regarding the increasing terror presence
in the said Union Territory. Around 108 terrorist incidents took place between 5
August, 2019 and 25 April, 2020, based on which, the learned Solicitor General
submitted that the underlying situation in Jammu and Kashmir is very dangerous and
volatile. Taking note of this, the authorities made adjustments with respect to the
application of restrictions imposed on the speed of the internet, and that would be
deemed as proportionate and necessary. Thus, the petitions should be dismissed.

JUDGMENT DATED 11.05.2020

The Bench consisting of Justices N.V. Ramana, Subhash Reddy and B.R. Gavai after hearing
arguments from both sides, the bench recognized the need to strike a balance between
national security and fundamental rights of the people of Jammu and Kashmir. The Court, at
first, addressed the steps that had already been taken by the Union Government in follow-up
to the directions given by the apex court in Anuradha Bhasin9. The Supreme Court also
acknowledged the fact that the government did shift from no internet at all, to 2G connection.
The Court then listed the number of increasing terror and insurgent activities, provided by the
Respondent, and in that context held that convenient and smooth access to the internet was
outweighed by the threat to the security of the nation.

When the Court addressed the proportionality of the restriction of internet services, it held
that although the restriction orders were temporary in nature, the respondents were not able to
substantiate their action with any reason that such restrictions were necessary for maintaining
security. The Court stated that restrictions should be imposed only when the necessity arises.

The Supreme Court then addressed the failure of the Union Government to stand by the Apex
Court’s directions in Anuradha Bhasin, where every order passed under Rule 2(2) of the
Telecom Suspension Rules10 for restriction of internet connection services needed to be
placed before the Review Committee. The Court then decided that the Review Committee,
which was supposed to formed according Rule 2(5) of the Suspension Rules 11, would be
replaced by a Special Committee. This new Committee would consist of the Secretary of
Ministry of Home Affairs, the Secretary of Department of Communications, and the Chief
Secretary of Union Territory of Jammu and Kashmir. This committee would look into the
alternatives suggested by the petitioners.

Additionally, the court observed that the order restricting internet services was not
unconstitutional. It was based on the pretext of terror and insurgent activities that were
rampant in the territory, and the Special Committee was expected to overlook the
geographical extent and duration of this restriction.

CRITICAL ANALYSIS

The main issues that were raised by the petitioners was that the restrictions imposed upon the
internet speed will hamper certain fundamental rights of the citizens in the union territory. In
these distressing times, when the pandemic has put the whole world on lockdown, the right to
health has gained greater importance. But with the restrictions on the internet speed in Jammu
9
Anuradha Bhasin v. Union of India, supra note 5.
10
Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, Rule 2(2).
11
Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, Rule 2(5).
and Kashmir, this right was under jeopardy as they were not access to the information
regarding the number of cases in the country nor they were able to fully understand the
ground reality of the pandemic. Due to the slow internet, they were missing out on important
medical information.

Since the independence of India, Kashmir has been a cause for constant fighting between
India and Pakistan. Three wars have already been fought between the two countries over
Kashmir.12 Since then, new methods to counter insurgent activities have been taken up by law
enforcement agencies, and this includes internet shutdown. But the restrictions imposed since
the abrogation of Article 370 of the Constitution have been very strict and
unreasonable.13There was country-wide lockdown and according to the Ministry of Health
and Family Welfare in its April 30 update said that 33,050 have been tested positive for
COVID-19. There have been 1074 deaths and 8,324 have been cured. Reports from States,
however, put the figure of persons tested positive at 33,090 and death toll at 1079. 14 These
figures demonstrated how access to health information through the internet became
necessary. In this aspect, the Supreme Court has completely overlooked public health and
stressed more upon the security of the nation in its judgment.

The Respondents, in their argument, claimed that several government websites and social
media platforms disseminating information and advisories were easily accessible through 2G
internet connection. But the Court did not take into consideration that these sites would suffer
intense traffic, thus making it nearly impossible to have access to them. The Court completely
ignored it and relied upon the so-called promises of the Union Government.

This goes onto show that the health of the people of Union territory of Jammu and Kashmir
will not even be considered when it comes to the question of national security. According to
the Court, the health of the people can be compromised with, but the security of the nation
was of utmost importance.

The other issue was with the fundamental rights of speech and expression which were also
being violated due to the restriction on the internet services. It was argued by the petitioners’

12
RAMCHANDRA GUHA, INDIA AFTER GANDHI: THE HISTORY OF WORLD LARGEST DEMOCRACY (Harper
Collins 2007).
13
Hindustan Times Correspondent, 39 days after lockdown, restrictions lifted from Jammu and Kashmir,
HINDUSTAN TIMES, (Sep. 13 2020), https://www.hindustantimes.com/india-news/39-days-after-lockdown-
restrictions-lifted-from-entire-jammu-and-kashmir/story-OC8ik4VC68z6jcYMbqIj1L.html.
14
Hindu Net Desk, Coronavirus India lockdown Day 37 updates | April 30, 2020, THE HINDU, (Apr. 30 2020),
https://www.thehindu.com/news/national/india-coronavirus-lockdown-april-30-2020-live-updates/
article31469180.ece.
that terrorism had increased after the complete ban on internet since 5 August, 2020. So, the
argument from the respondents was, “the internet aids in disseminating terrorist information”,
but this is not a valid argument. Instead of making the Centre accountable for its
unreasonable actions, the Court placed people’s rights lower than the security of the nation.

These restrictions have certainly not made life easy for the students of Jammu and Kashmir.
On the other hand, it was starkly different to the students from other parts of the world. It was
claimed by the Respondent that students were facing no such problem as education was being
disseminated by 16 Doordarshan channels and radio stations. But considering the students’
perspective, who are studying for board exams and national and international competitive
exams, the efforts from the government does not suffice and access to e-learning resources is
necessary. In this age of cut-throat competition, students prefer a personalized touch in order
to better prepare for their respective exams, and efforts from the government do not seem
enough. The Supreme Court totally ignored the students’ requests and believed that the
government’s efforts were sufficient. Their mere luck of being born in that region is costing
them their fundamental rights. This is in complete violation of Article 15 of the
Constitution.15

Another striking observation from the Supreme Court judgment is the delegation of judicial
responsibility. The three-judge bench directed the formation of the Special Committee instead
of the Review Committee, as directed in the Anuradha Bhasin judgment. The new Committee
would consist of three Executive officials. So, the Executive will decide if they have violated
the fundamental rights of the people of Jammu and Kashmir. 16 This act of the Judiciary can
be considered as the complete abdication of its judicial responsibility. As per Article 32, 17 the
petitioner has the fundamental right to judicial remedy, but if the Apex Court decides to
delegate its powers to the Executive, against whom the grievance is lodged, then it is totally
unacceptable and dreadful for the people of this country. It breaks the trust of the people who
see the Judiciary as their last hope of justice.

CONCLUSION

15
INDIA CONST. art. 15.
16
Gautam Bhatia, The Supreme Court’s 4G Internet Order: Evasion by Abnegation, INDIAN CONSTITUTIONAL
LAW AND PHILOSOPHY, (Jun. 6 2020),  https://indconlawphil.wordpress.com/2020/05/11/the-supreme-courts-
4g-internet-order-evasion-by-abnegation/.
17
INDIA CONST. art. 32.
In this case, the Supreme Court had a good opportunity to set the record straight by making
the executive accountable for its unreasonable and arbitrary actions. But it did the exact
opposite, by delegating power to executive officials to review executive actions. Even after
the Supreme Court’s directions, the Government of Jammu and Kashmir renewed the order
for temporary suspension of telecom services on 11 May, 2020. 18 This order was renewed for
another time, and in the meantime, there had been no mention of the Special Committee,
which was supposed to be formed by now. It was only after there had been initiation of
contempt proceedings against the particular executive officials of the Special Committee, 19
did the Government pay heed to the constitution of the committee and lifted the internet
restrictions on a trial basis20 by an order dated 16 August, 2020. 21 It was only recently, on 5
February, 2021, that full-fledged 4G internet connection was finally restored in the Union
Territory of Jammu and Kashmir.22

While it can be argued that the security of the nation is of utmost importance, the government
cannot take measures which violate the fundamental rights of the citizens. When the nexus
between restriction of internet and reduction in terror activities cannot be proved, then
reducing internet speed or effectuating a complete internet shutdown does not seem
reasonable in the largest democracy. Without looking into other effective measures, and
continuously sticking with an easy approach of internet restriction is either an ineffective
policy decision or abuse of power. It is hoped that the recently restored 4G connection
continues and the life of the people of Jammu and Kashmir and the terror situation in the
region improves, along with the hope that the lives of people of Jammu and Kashmir will be
free from executive will use this judgement to set things rights through setting up of the
Special Committee and reduce the executive control over the people of Jammu and Kashmir.

ME Note

18
Home Department, Government of Jammu and Kashmir, Temporary Suspension of Telecom Services Order,
Home -48 (TSTS) of 2020 (May 27, 2020).
19
Live Law News Network, Foundation Of Media Professionals Files Contempt Petition In SC Over Non
Constitution Of Special Committee To Review J&K Internet Curbs, LIVE LAW, (Jun 9 2020),
https://www.livelaw.in/top-stories/foundation-of-media-professionals-contempt-petition-over-non-constitution-
ofspecial-committee-jk-internet-curbs-158053?infinitescroll=1.
20
Trisha Jalan, Internet speeds will continue to be restricted to 2G in Jammu & Kashmir, MEDIANAMA (June
18, 2020), https://www.medianama.com/2020/06/223-2g-restriction-jammu-and-kashmir-continues/.
21
Home Department, Government of Jammu and Kashmir, Temporary Suspension of Telecom Services Order,
Home - 91 (TSTS) of 2020 (Aug 16, 2020).
22
Anuradha Bhasin Jamwal, 4G Is Back in J&K After 18 Months, but it Can't Compensate for What We Lost,
THE WIRE, (February 7 2021), https://thewire.in/rights/jammu-and-kashmir-4g-internet-costs.
The paper is simple and well-researched. But when you talk about a topic like this, the reader
will always be left wanting more. Every section is simple and meets the bare minimum
requirement, but something about the whole paper just feels a little incomplete. Just look into
the comments of all the editors and see how you can add much more value to this paper. It
really has a lot of potential.