1

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
PUBLIC INTEREST LITIGATION
WRIT PETITION (CIVIL) NO. OF 2020

(A Petition under Article 32 of the Constitution of India praying

for an appropriate writ or direction for restoration of 4G mobile
internet services in Jammu & Kashmir)

IN THE MATTER OF:

Private Schools Association J&K
Through its President,

PETITIONER
VERSUS
1. Home Department
Govt of U.T. of Jammu & Kashmir
Through its Principal Secretary
Room No. 307, 3rd Floor
Civil Secretariat, Srinagar - 190001 RESPONDENT NO. 1

2. Ministry of Home Affairs

Government of India
Through its Secretary
North Block, Central Secretariat
New Delhi – 110001 RESPONDENT NO. 2
 2
3. Department of School Education
Govt of U.T. of Jammu & Kashmir
Through its Administrative Secretary
Civil Secretariat, Srinagar- 190001 RESPONDENT NO. 3

4. Ministry of Education
Government of India
Through its Secretary
Shastri Bhawan, Central Secretariat
New Delhi- 110001 RESPONDENT NO. 4

5. Special Committee for Internet Restrictions in J&K

Through its Chairperson
Secretary, Ministry of Home Affairs
North Block, Central Secretariat
New Delhi – 110001 RESPONDENT NO. 5

A PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA PRAYING FOR AN
APPROPRIATE WRIT OR DIRECTION FOR THE
RESTORATION OF 4G MOBILE INTERNET SERVICES
IN JAMMU & KASHMIR

To,
The Hon’ble Chief Justice of India
and His Companion Judges of
the Hon’ble Supreme Court of India
The Humble Petition of the
Petitioner above named
 3
MOST RESPECTFULLY SHOWETH
1. The Petitioner Society, a non-profit organization
representing over 3800 members schools, is constrained to
file the present petition seeking restoration of 4G mobile
internet services in Jammu & Kashmir after more than 500
days of continuous internet restrictions which have
developed a routine and permanent character. The present
Petition has been necessitated by grave violation of the
fundamental right to education of students in Jammu &
Kashmir by Respondent No.1 who has continued slowing
down mobile internet speed to 2G despite the COVID-19
induced shift to online schooling.
2. By way of the present Petition, the Petitioner seeks to
challenge Order No. Home-134 (TSTS) of 2020 dated
11.12.2020 (“Impugned Order”), and any other
subsequent similar order, issued by Respondent No. 1,
inter alia, restricting mobile internet speed to 2G only in 18
out of 20 districts of Jammu & Kashmir till 25.12.2020 for
being violative of Articles 14, 19, 21, and 21A of the
Constitution of India. The Petitioner additionally seeks
directions from this Hon’ble Court to direct Respondent No.
1 to restore 4G mobile internet services in the remaining 18
districts of Jammu & Kashmir, in line with the rest of the
country. A true typed copy of Order No. Home-134 (TSTS)
of 2020 dated 11.12.2020 issued by Respondent No. 1 is
annexed herewith as ANNEXURE P-1 at pgs. 54 to 56.

ARRAY OF PARTIES
3. The Petitioner Society is an association of over 3800 private
schools in Jammu & Kashmir and it is the largest school
 4
association in the region. The Petitioner Society has
member schools belonging to all districts of Jammu &
Kashmir and every district has a District President. The
Petitioner Society is governed by a 21 member Executive
Council which is headed by the President, Mr. G.N. Var.

A true copy of the registration certificate of the Petitioner-

Society bearing Registration No. 7079-S of 2018 dated
02.03.2018 is annexed herewith as ANNEXURE P-2 at
pg.57. A true copy of the PAN Card of the Petitioner
Society is annexed herewith as ANNEXURE P-3 at pg.58
A true copy of authorization letter in favour of Mr. G.N.
Var, the President/authorized representative is annexed
herewith as ANNEXURE P-4 at pg.59.
4. It is submitted that the Petitioner Society was established to
collectively represent the interests of schools in Jammu &
Kashmir and to cater to the educational needs of students in
the region, and it has responsibly engaged with courts to
achieve these objectives. As teachers and school
administrators, members of the Petitioner Society were
deeply concerned about the impact of internet restrictions
on access to education as schools in Jammu & Kashmir have
been unable to conduct regular classes since 05.08.2019.
Therefore, the Petitioner Society filed a Writ Petition titled
Private Schools Association J&K v. U.T. of Jammu &
Kashmir, W.P. (Civil) Diary No. 10904 of 2020 on
 5
13.04.2020 before this Hon’ble Court which was tagged
with two similar petitions filed by Foundation for Media
Professionals and Advocate Soyaib Qureshi.

5. The Petitioner Society does not have any personal interest

or any personal gain or private motive or any other oblique
reason in filing this Writ Petition in Public Interest.

6. The Petitioner Society has not been involved in any other

civil or criminal or revenue litigation, which could have
legal nexus with the issues involved in the present Petition.
It is hereby disclosed that the Petitioner filed a Writ Petition
titled Private Schools Association J&K v. U.T. of Jammu &
Kashmir, W.P. (Civil) Diary No. 10904 of 2020, as
mentioned above.

7. Respondent No. 1 is the Home Department, Union Territory

of Jammu & Kashmir, through the office of the Principal
Secretary, being the appropriate government in-charge of
law and order in Jammu & Kashmir. Respondent No. 1 has
passed all the orders under Temporary Suspension of
Telecom Services (Public Emergency or Public Safety)
Rules, 2017 (“Telecom Suspension Rules”) in Jammu &
Kashmir, including the Impugned Order dated 11.12.2020.

8. Respondent No. 2 is the Ministry of Home Affairs, Union

of India, through the office of the Secretary, being the
concerned authority for maintenance of security across the
country. Respondent No. 2 has also passed orders dated
24.03.2020, 29.08.2020 and 30.09.2020 under the Disaster
 6
Management Act, 2005 containing guidelines for COVID-
19 related restrictions across the country.

9. Respondent No.3 is the Department of School Education,

Union Territory of Jammu & Kashmir, through the office of
the Administrative Secretary, being the appropriate
government authority in charge of elementary, secondary
and higher secondary education in Jammu & Kashmir.

10. Respondent No. 4 is the Ministry of Education, Union of

India, through the office of the Secretary, being the
concerned authority for development of school education
and literacy across the country.

11. Respondent No. 5 is the Special Committee constituted by

this Hon’ble Court vide its judgement dated 11.05.2020 in
Foundation for Media Professionals & Ors. v. U.T. of
Jammu & Kashmir & Anr., 2020 5 SCC 746, through its
Chairperson, the Secretary of the Ministry of Home Affairs.
The Special Committee has been entrusted by this Hon’ble
Court with the responsibility of ensuring that internet
restrictions in Jammu & Kashmir are narrowly tailored in
their temporal and geographical scope.

12. The Petitioner has not approached the Respondents herein

in for the reliefs prayed for in this Petition as they are in the
nature that can only be given by a constitutional court such
as this Hon'ble Court.
 7
BRIEF FACTS
13. The brief facts giving rise to the present Petition are stated
below.

Timeline of Internet Restrictions and School Closures

14. On 05.08.2019, Respondent No.1 imposed a complete
communication shutdown in Jammu & Kashmir against the
backdrop of abrogation of Article 370 of the Constitution
which granted a semi-autonomous status to the Former
State. It is worth mentioning here that as per the Fifth
Schedule to the Jammu & Kashmir Reorganization Act,
2019, the Right of Children to Free and Compulsory
Education Act, 2009 (‘RTE Act’) was made applicable to
the Union Territory of Jammu & Kashmir. All
communication services including landlines, voice calls,
SMS, fixed line internet and mobile internet were
suspended and severe restrictions were imposed on
movement of persons. In particular, schools, colleges and
other education institutions were also forced to shut down,
and in the Kashmir Valley, they remained closed till
24.02.2020. A true copy of news report titled ‘Students
return to classes as Kashmir schools re-open’ dated
25.02.2020 published by the Hindustan Times is annexed
herewith as ANNEXURE P-5 at pgs. 60 to 61.

15. The communication shutdown and movement restrictions

imposed by Respondent No.1 on 05.08.2019 were
challenged before this Hon’ble Court in Anuradha Bhasin
& Anr. v. Union of India & Ors, 2020 3 SCC 637
(‘Anuradha Bhasin’). Vide judgment dated 10.01.2020,
 8
this Hon’ble Court was pleased to issue the following
directions in Anuradha Bhasin (supra):

a. Freedom of speech and expression and the freedom

to practice any profession or carry on any trade,
business or occupation over the medium of internet
enjoys constitutional protection under Article
19(1)(a) and Article 19(1)(g). The restriction upon
such fundamental rights should be in consonance
with the mandate under Article 19(2) and (6) of the
Constitution, inclusive of the test of proportionality.
b. Respondent No. 1 and its competent authorities were
directed to review orders issued under the Telecom
Suspension Rules in accordance with the
proportionality standard. In particular, this Hon’ble
Court emphasized that to satisfy the proportionality
standard, “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” (para 79). It was also
clearly held that the Telecom Suspension Rules could
not be used to indefinitely suspend internet services
and “suspension can be utilized for temporary
duration only” (para 160.3 & 160.4).
c. Respondent No. 1 and its competent authorities were
directed to publish all orders in force, as well as all
future orders issued under the Telecom Suspension
Rules.
d. The Review Committee constituted under Rule 2(5)
of the Telecom Suspension Rules was directed to
 17
work adequately at 2G speed. Meaningful education cannot
be imparted to students through TV or radio broadcast
because such one-way communication does not now allow
students to interact with their teachers and clarify their
doubts. Similarly, many subjects such as Maths, Science or
Geography cannot be taught through audio only lectures
without visual aids.

28. Students in Jammu & Kashmir are already at a disadvantage

due to prolonged school closures after 05.08.2019 and they
are deeply anguished by the prospect of being left behind
while students in other parts of the country continue their
education. Further, teachers and parents in Jammu &
Kashmir are in a state of despair about discontinuation of
education in the region and its impact on the mental health
of students.

29. The severe impact of school closures has been recognized

by the Jammu & Kashmir State Board of School Education
which had to reduce the syllabus by 40% for annual
examinations scheduled in 2020 for students in Class 10, 11
and 12. However, no such concessions are available for
students from Jammu & Kashmir who are appearing for
national level competitive exams where the syllabus
remains unchanged and where they must compete with
students from other parts of India who had the ability to
continue their education through high speed internet access.
Due to the internet restrictions, many older students have
been forced to leave their families and live outside Jammu
& Kashmir to prepare for competitive exams. Those without
 21
4G 4G stands for the fourth generation of mobile
connection speeds. 4G or LTE is upgraded
mobile data technology that provides
extremely high download data speed upto 150
Mbps and advanced LTE can provide
download speeds upto 300 Mbps. Voice call
service in LTE is provided over data/packet
network (VoLTE- voice over LTE) unlike
2G/3G, where circuit switched network is used
to make voice call.

A true copy of TRAI’s My Speed App webpage is annexed

herewith as ANNEXURE P-26 at pgs. 283 to 285.

36. To quantify the impact of an internet slowdown, technology

researchers have conducted theoretical and simulated
comparisons of web performance at 2G and 4G network
speeds. Their analysis suggests that video streaming and
video conferencing/communication services should be
expected to perform poorly on 2G speeds, as observed 2G
network conditions are well below the minimum
requirements published by leading video streaming /video
communication platforms like YouTube, Zoom and Skype.
Thus, the video viewing/conferencing experience at 2G
speeds will be subject to significant degradation as
compared to 4G speeds. In this scenario, making two-way
online education available through video conferencing
platforms such as Zoom or Google Classrooms is
impossible and even one way online education through
video streaming platforms such as YouTube is difficult
 23
infrastructure that makes the right to education
effective, and not reduce it to a nullity?
c. Whether the restriction of mobile internet speed has
directly impacted the enjoyment of various other
fundamental rights, such as the right to health
[guaranteed under Article 21], right to freedom of
speech and expression [guaranteed under Article
19(1)(a)], the right to occupation and business while
working from home [guaranteed under Article
19(1)(g)]; and the right to access justice [guaranteed
under Article 21], in the specific context of the
ongoing COVID-19 pandemic?
d. Whether the restriction of mobile internet speed to
2G fails the proportionality test as well as the
guidelines laid down by this Hon’ble Court in
Anuradha Bhasin (supra)?
e. Whether the restriction of mobile internet speed in
the Union Territory is permissible, given that it
effectively amounts to a targeted roll-back of the
rights of the residents of Jammu & Kashmir?
f. Whether, specifically, impeding access to essential
services by means of the Impugned Order to the
residents of one particular Union Territory is
violative of Article 14 of the Constitution of India, as
it singles out the residents of a specific Union
Territory for an unreasonable burden?

39. That the present Writ Petition is being filed inter alia on the
following grounds which are to be read individually and
collectively:
 24
GROUNDS
The indefinite restriction of mobile internet services is
disproportionate and unconstitutional
A. BECAUSE there has been a restriction on mobile internet
services in Jammu and Kashmir for over 500 days, which is
the longest period in any democracy in the world. Such a
continued and indefinite restriction of internet services is
disproportionate and a clear violation of this Hon’ble
Court’s judgment in Anuradha Bhasin (supra), which held
as follows (para 160.3 and 160.4):
“An order suspending internet services indefinitely is
impermissible under the Temporary Suspension of
Telecom Services (Public Emergency or Public
Service) Rules, 2017. Suspension can be utilized for
temporary duration only.

Any order suspending internet issued under the

Suspension Rules, must adhere to the principle of
proportionality and must not extend beyond
necessary duration.” (Emphasis Supplied)

B. BECAUSE the Respondents cannot restrict fundamental

rights of the students and ordinary people of Jammu &
Kashmir for over 500 days by blandly citing national
security concerns, without providing any empirical or
factual basis for the same. It is pertinent to note that 4G
mobile internet was restored on a “trial basis” to in
Ganderbal and Udhampur Districts on 16.08.2020, and the
Special Committee had undertaken to examine the case of
restoring internet in the remaining 18 districts in Jammu and
Kashmir after two months i.e. on or before 16.10.2020 . The
restoration of 4G mobile internet in these two districts has
not significantly increased incidents of violence or protests,
 25
and there is no basis for refusing to extend these relaxations
to the other 18 districts.

C. BECAUSE terrorist attacks have taken place in Jammu &

Kashmir before 4G technology was in place and if
Respondent No. 1’s argument is accepted at face value, the
misuse of the internet by a few (many of whom are outside
India or may be using fixed line internet) will never permit
the restoration of 4G mobile internet access. However, in
Anuradha Bhasin (supra), this Hon’ble Court made it clear
that keeping in view the “temporary” nature of the Telecom
Suspension Rules, indefinite internet suspension is
impermissible and internet restrictions cannot become a
permanent feature of society.

D. BECAUSE given the grave impact that prolonged internet

restrictions have on the future of students and other ordinary
citizens in the region, terrorism cannot become a ground to
indefinitely restrict the internet especially without a formal
state of emergency being declared, and without considering
the suitability and necessity of existing internet restrictions
when compared to less restrictive alternatives. It is
submitted that the time has come for the State to pursue
alternatives that are mindful of the impact that internet
speed restrictions have on law-abiding citizens of the
region.

The Impugned Order violates the fundamental right to

education guaranteed under Article 21 and 21A
 26
E. BECAUSE the internet restrictions in Jammu & Kashmir
impede access to education for children, in contravention of
the right to free and compulsory education under Article
21A of the Constitution of India. Even prior to the
introduction of this right vide the Constitution (Eighty-
Sixth) Amendment Act, 2002, this Hon’ble Court has
recognized the significance of the right to education in
ensuring the right to life with dignity under Article 21 of the
Constitution [Mohini Jain v. State of Karnataka, (1992) 3
SCC 666, Unni Krishnan v. State of Andhra Pradesh,
(1993) 1 SCC 645]. In addition, this Hon’ble Court in
Bandhua Mukti Morcha v. Union of India, (1997) 10 SCC
549, at paras 9-11, recognized that the right to education
ensured equality of status and opportunity for children from
marginalized sections of society by enabling equal
participation in civic life as well as “stability of the
democracy, social integration and to eliminate social
tensions.”

F. BECAUSE Article 21A of the Constitution imposes an

obligation on the State to provide “free and compulsory
education to all children of the age of six to fourteen years
in such manner as the State may, by law, determine.” It is,
therefore, clear that no exceptions to the duty are envisaged
in the said Constitutional provision and the right recognized
therein is inalienable [Avinash Mehrotra v. Union of India,
(2009) 6 SCC 398, para 30-37; Ashok Kumar Thakur v.
Union of India, (2006) 8 SCC 1]. While there is no basis
for derogation from this obligation under any circumstance,
the State has been given the power to determine the manner
 27
in which this obligation would be met, through statutory
enactment. This has been provided in the Right of Children
to Free and Compulsory Education Act, 2009 (‘RTE Act’).
Section 3 of the RTE Act reiterates that every child shall
have the right to free and compulsory education “in a
neighbourhood school” until the completion of elementary
education. Section 8 of the RTE Act clarifies that the
obligation of the appropriate Government to ensure free and
compulsory education extends to ensuring “compulsory
admission, attendance and completion of elementary
education by every child of the age of six to fourteen years”,
among other related obligations of ensuring adequate
infrastructure as well as non-discrimination in access to
education. The obligation to provide such free and
compulsory education extends to schools in terms of
Section 12 of the Act, which specifies obligations of schools
owned and controlled by the Government, private schools
which receive aid as well as unaided private schools.
Therefore, the right to education is not mere enrolment in
schools but places obligations on the State as well as schools
to ensure that each child has access to education and
completes elementary education in terms of the Act. The
manner of education during the COVID-19 pandemic being
confined to online education, the right to education is
severely impacted by denial of access to effective internet
services.

G. BECAUSE in terms of Article 21A as well as the provisions

of the RTE Act, courts have recognized the significance of
continuing education during the COVID-19 pandemic
 28
through online modes and found that the manner of
providing the right to education includes online education
and therefore, access to online education has to be
ensured. In this context, in Girija CC v State of Kerala,
2020 SCC OnLine Ker 2537, the Hon’ble High Court of
Kerala observed as follows:
“31. In that view of the matter, we are of the
considered opinion that the Government have
already taken substantial steps, and is also taking
steps to address the issues pointed out by the
petitioners, and therefore we are hopeful, that all
possible steps would be taken by the Government to
alleviate any remaining grievances specifically
pointed out by any student, parents, any responsible
member of public or any other stakeholders for
ensuring that, not even a single student is eliminated
from the process of online classes. In this regard we
are also conscious of the fact that, Article 21A was
introduced into the Constitution of India with the
predominant intention of providing free and
compulsory education to all children of the age of 6
to 14 years in such a manner as the State may by law,
determine. It is explicit and convincing from Article
21A that whatever medium of instruction provided by
the State Government to the students, from the age of
6 to 14, it shall be provided to all irrespective of their
social, educational, financial, economic, political
and cultural background. So much so, the
fundamental right so extended under Article 21A to
the children, clearly encompasses a duty coupled
with obligation, on the State Government to ensure
education to the children continuously and without
any lapses. Even if any adverse situations are
prevailing in the community due to the pandemic
COVID-19, if the State Government is providing
online education, the entire student community in the
State are entitled to reap the benefit as of right, to
attend such online classes on the basis of the
guarantee extended under Article 21A of part III of
the Constitution of India.” (Emphasis supplied)
 29
H. BECAUSE the Hon’ble Delhi High Court in Justice for All
v. Govt of NCT of Delhi, (2020) SCC OnlineDel 1217,
para 120 also observed that “the RTE Act, 2009
intentionally does not define the word Education as it needs
to deal with changes in society as well as technological
advances, outbreak of diseases, natural calamities and a
broad range of circumstances that are not possible to
anticipate in advance.” Therefore, the Court held that online
education during the pandemic was within the ambit of the
right to education as schools were free to adopt any mode
of education to ensure that the minimum requirements of the
RTE Act were met. On this basis, the Court also considered
the non-discrimination obligations under the RTE Act in
context of students from weaker sections and disadvantaged
groups and observed that the obligation to ensure non-
discrimination in education included equitable access to
information and communication technologies. The Court
also held that digital divide in education constituted a
violation of Article 14 of the Constitution and observed as
follows:
“183. [..]Segregation in Education is a denial of
equal protection of the laws under Article 14 of the
Constitution and in particular Sections 3(2) and
12(1)(c) of RTE Act, 2009. Colin Powell former
Secretary of State USA, characterised the gap
between those who have access to the wonders of
digital technology and the Internet, and those who do
not, as “digital apartheid
[....]
186. Consequently, intra-class discrimination,
especially inter-se 75% fee paying students viz-a-viz
25% EWS/DG students' upsets the ‘level playing
field’ and amounts to discrimination as well as
creates a vertical division, digital divide or digital
gap or ‘digital apartheid’ in addition to segregation
 30
in a classroom which is violative of RTE Act, 2009
and Articles 14, 20 and 21 of the Constitution.”

On this basis, the Court passed orders regarding measures

to be taken to ensure access to the internet for children from
weaker sections and disadvantaged groups. It is, therefore,
clear that the right to education as well as the right to
equality entails an obligation to ensure equitable access to
the internet for all students. The Court also noted the need
for non-retrogression of the right to education as “continuity
of learning should not break because once children step out
of learning, coming back is very difficult.”

I. BECAUSE the UN General Assembly Resolution on ‘The

Promotion, Protection and Enjoyment of Human Rights on
the Internet’ (July 2014) also recognized the significance of
the internet for facilitating access to education as follows:
“Emphasizing that access to information on the
Internet facilitates vast opportunities for affordable
and inclusive education globally, thereby being an
important tool to facilitate the promotion of the right
to education, while underlining the need to address
digital literacy and the digital divide, as it affects the
enjoyment of the right to education,
[...]
4. Affirms that quality education plays a decisive role
in development, and therefore calls upon all States to
promote digital literacy and to facilitate access to
information on the Internet, which can be an
important tool in facilitating the promotion of the
right to education.”

International conventions have to be considered while

interpreting the scope of Fundamental Rights under the
Constitution of India unless they are contrary to domestic
 31
law occupying the field [Vishaka v. State of Rajasthan,
(1997) 6 SCC 241]. On this basis, the Hon’ble Kerala High
Court in Faheema Shirin R.K. v. State of Kerala, 2019
SCC OnLine Ker 2976 held that “the right to have access
to the internet becomes the part of right to education as well
as the right to privacy under Article 21 of the Constitution
of India.”

J. BECAUSE it is clear from the above that the right to

education under Article 21A as well as the RTE Act may
include online education, and where State policy decides a
mode of providing education, there is also a need to ensure
that all students have equal access to such modes of
education. In the present case, State policy clearly favours
online education and this is evident from the Standard
Operating Procedure (‘SOP’) issued by Respondent No.4
which states that “Online/distance learning shall continue
to be the preferred mode of teaching and shall be
encouraged.” Further, effective internet services are
required not merely for conducting classes but also for
assessment and evaluation. For instance, the SOP notes that
even after re-opening, schools should adopt “contactless
process for attendance, classroom participation,
assessment and learning including online submissions etc.
for both students and staff members.” Therefore, even if
schools fully re-open in Jammu & Kashmir at an uncertain
point of time in future, high speed internet services will still
be required to minimize risk of virus transmission among
students and teachers. Finally, forcing students to attend in-
person classes during a global pandemic amounts to an
 32
unconstitutional condition which makes the fundamental
right to education contingent upon waiving the fundamental
right to health. The SOP seems to recognize this problem
and it clearly states that for in-person classes, attendance
cannot be enforced and it must depend entirely on parental
consent. Therefore, online classes will remain necessary for
students who are unable to attend in-person classes for
various reasons including having a comorbidity or living
with family members who have a comorbidity.

K. BECAUSE in the specific context of the ongoing COVID-

19 pandemic, slow internet speed is preventing the children
of Jammu & Kashmir from continuing their education using
online tools such as Zoom or Google Classrooms which are
available to students in other parts of the country.
Technology researchers have found that 2G network speed
is well below the minimum requirements for video
conferencing platforms like Zoom and Skype and video
streaming platforms like YouTube. For instance,
simulations suggest that a 20 minute YouTube video could
take anywhere between 34 minutes and 1 hour 36 minutes
to watch completely on a 2G connection. Further, students
in Jammu & Kashmir are already at a disadvantage
compared to students in other parts of the country due to
prolonged school closures since 05.08.2019. The severe
impact of school closures combined with an inability to shift
to online education has been recognized by the Jammu &
Kashmir State Board of School Education which had to
reduce the syllabus by 40% for annual examinations
scheduled in 2020 for students in Class 10, 11 and 12.
 33
However, no such concessions are available for students
from Jammu & Kashmir who are appearing for national
level competitive exams where the syllabus remains
unchanged and where they must compete with students
from other parts of India who had the ability to continue
their education through high speed internet access. Due to
the internet restrictions, many older students have been
forced to leave their families and live outside Jammu &
Kashmir to prepare for competitive exams. Those without
such privilege are left to compete with students from the rest
of a country, on an unequal field. Such discrimination in
access to education between the students of Jammu &
Kashmir and students from the rest of the country is
violative of Article 14 of the Constitution.

L. BECAUSE it is not possible to effectively impart education

through one way communication channels such as TV and
radio broadcasts because students can learn properly only in
an interactive environment where they are provided an
opportunity to ask questions and clarify doubts. Similarly,
many subjects such as Maths, Science and Geography
cannot be taught using audio only lectures without visual
aids. In any case, the decision regarding mode of education
has been left to schools, who have the obligation to ensure
that the minimum standards under the RTE Act are met.
Further, some students not having access to
smartphones/laptops does not justify denial of 4G internet
services to other students who have access to these
resources. Instead, the Respondents should try to ensure that
all students in Jammu & Kashmir have access to electronic
 34
devices necessary to continue their education, and this view
has been upheld by the Hon’ble Kerala High Court in Girija
CC v State of Kerala, 2020 SCC Online Ker 2537 and the
Hon’ble Delhi High Court in Justice for All v. Govt of NCT
of Delhi, 2020 SCC Online Del 1217. Moreover, in the
present case, the Respondents are not even being asked to
create new infrastructure or to use their budgetary allocation
in specific ways to ensure access to education. They are only
being requested to not deprive citizens in Jammu &
Kashmir of 4G internet facilities that are already available
and are actively being disabled by Internet Service
Providers pursuant to the Impugned Order. This distinction
is relevant because positive rights which require action by
the State may be progressively realized but negative rights
which protect against interference by the State must be
immediately enforced by this Hon’ble Court.

The Impugned Order violates other fundamental rights

including health, livelihood, access to justice and
freedom of speech

M. BECAUSE it is now well settled that Article 21 guarantees

the right to health, and it is the obligation of the State to
create and sustain conditions congenial to good health
[Vincent Panikurlangara v. Union of India, (1987) 2 SCC
165] and to provide adequate medical services and medical
aid to the people to preserve human life and “whatever is
necessary for this purpose has to be done” [Paschim Banga
Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37].
The right to live with human dignity guaranteed under
 35
Article 21 of the Constitution derives its breadth from the
Directive Principles of State Policy, particularly Articles
39(e)-(f) and Article 41, and therefore, must include
protection of the health and opportunities and facilities for
children to develop in a healthy manner [Bandhua Mukti
Morcha v. Union of India, (1984) 3 SCC 161].

N. BECAUSE by disabling essential digital infrastructure

during a contagious pandemic that necessitates social
distancing, the Respondents have violated the fundamental
right to health of residents of Jammu & Kashmir. Without
4G internet services which can support video conferencing,
the people of Jammu & Kashmir are unable to access
telemedicine and they are being forced to flock at hospitals
which are hotbeds of infection. Video conferencing is
necessary for telemedicine because doctors need to visually
examine patients for accurate diagnosis and treatment. In
addition to this, medical professionals are unable to
download latest information about COVID-19 and other
diseases and they are unable to provide the highest quality
of care to their patients despite their best efforts.

O. BECAUSE restricted internet speed also makes it

practically impossible to follow the government
recommended “work from home” policy. While businesses
in other parts of the country have successfully shifted to
work from home models as per Respondent No.2’s
guidelines, businesses in Jammu & Kashmir are unable to
do the same due to slow internet speed which makes video
conferencing and file sharing very difficult. Problems may
 36
also arise in accessing e-commerce and online banking due
to timeouts imposed by website administrators, which
become more likely at 2G internet speed. It should be noted
that businesses in Jammu & Kashmir have not been able to
function normally since 05.08.2019 and there are serious
concerns about closures and retrenchment. As per estimates
of the Kashmir Chamber of Commerce and Industry, the
internet restrictions in place since 05.08.2019 have caused
Rs. 40,000 crores losses in Kashmir Valley alone and more
than 5,00,000 people are facing unemployment. This
Hon’ble Court in Anuradha Bhasin (supra) was pleased to
recognise that the freedom of trade and commerce through
the medium of the internet is protected under Article
19(1)(g) of the Constitution. Therefore, the internet
restrictions which are depriving the people of Jammu &
Kashmir of their right to earn a livelihood are not justifiable
under Article 19(6), especially during the prevailing
COVID-19 pandemic.

P. BECAUSE this Hon’ble Court in Anita Kushwaha v

Pushap Sudan, (2016) 8 SCC 509, held that the right to a
legal remedy (ubi just ibi remedium), guaranteed access to
justice, and an adequate grievance redress mechanism is a
facet of the right to life and liberty guaranteed under Article
21 and the right to equality under Article 14 of the
Constitution.

Q. BECAUSE the Jammu & Kashmir High Court premises

largely remain closed due to the COVID-19 pandemic, and
filings and hearings are primarily being conducted through
 37
virtual mode. As a result, many lawyers and litigants in
Jammu & Kashmir are unable to approach courts because
they cannot access video conference facilities in view of the
Impugned Order’s restriction on mobile internet speed.
Concerns about inability to attend virtual court hearings due
to lack of 4G mobile internet access have also been raised
by the Bar Association of Jammu & Kashmir in its
representation to the Chief Justice of this Hon’ble Court.
Therefore, the internet speed restrictions have led to denial
of access to justice, and the Impugned Order is violative of
the fundamental rights under Articles 14 and 21.

R. BECAUSE it is well settled that that freedom of speech and

expression under Article 19(1)(a) of the Constitution is a
vital fundamental right, central to guaranteeing individual
autonomy as well as a thriving democracy based upon a
marketplace of ideas [Indian Express Newspapers
(Bombay) Private Ltd. & Ors. vs. Union of India & Ors.,
(1985) 1 SCC 641]. Further, freedom of speech and
expression under Article 19(1)(a) has been consistently
interpreted to include the right of the public to know and
receive information so as to make an informed choice on the
issues affecting us [Ministry of Information and
Broadcasting, Govt. of India v. Cricket Assn. of Bengal,
(1995) 2 SCC 161].

S. BECAUSE international courts have recognized that the

public’s right to receive information cannot be curtailed
even in terrorism affected regions. For instance, in Surek v.
Turkey (No.4), Application No. 24762/1994, the European
 38
Court of Human Rights held that the Applicant's conviction
for disseminating separatist propaganda was unjustified
despite a history of terrorism in the region. The Court
explained that hard hitting criticism of the government was
“more a reflection of the hardened attitude of one side to
the conflict, rather than a call to violence” and found that
“the domestic authorities in the instant case failed to have
sufficient regard to the public’s right to be informed of a
different perspective on the situation in south-east Turkey,
irrespective of how unpalatable that perspective may be for
them.”

T. BECAUSE in the context of recognizing the role that the

internet and an independent media play in a democracy, the
Special Rapporteurs of the United Nations, namely: David
Kaye, Special Rapporteur on the promotion and protection
of the right to freedom of opinion and expression; Michel
Forst, Special Rapporteur on the situation of human rights
defenders; Bernard Duhaime, Chair-Rapporteur, Working
Group on Enforced or Involuntary Disappearances;
Clement Nyaletsossi Voule, Special Rapporteur on the right
to peaceful assembly and association; and Agnes
Callamard, Special Rapporteur on extrajudicial, summary
or arbitrary executions, had written a joint letter dated
16.08.2019 to the Union of India stating:
“Access to the internet and telecommunications networks
are crucial to prevent disinformation, and they are crucial
to protect the rights to health, liberty and personal integrity,
by allowing access to emergency help and other necessary
assistance. Access to telecommunications networks is also
crucial to ensure accountability of authorities for possible
human rights violations, including the excessive use of force
 39
against peaceful protesters and others. We express our deep
concern that the network disruptions will fuel chaos and
unrest in Jammu and Kashmir, and that they contribute to a
climate fear and uncertainty in the population.”

U. BECAUSE this Hon’ble Court in Anuradha Bhasin

(supra) has expressly recognised that expression through
the internet has gained “contemporary relevance” and is one
of the “major means of information diffusion”. Therefore, it
was pleased to hold that “the freedom of speech and
expression through the medium of internet is an integral
part of Article 19(1)(a) and accordingly, any restriction on
the same must be in accordance with Article 19(2) of the
Constitution.” It is submitted that access to the internet is a
basic and essential facet of the freedom of speech and
expression and the right to know, including the right of the
media to report freely.

V. BECAUSE the Impugned Order explicitly seeks to

interfere with dissemination of information during district
level polls in Jammu & Kashmir even though elections are
precisely when voters most require access to information to
decide which candidate to support and to learn about the
voting process. Further, internet access during elections is
crucial for the media and the public to document any
instances of voter suppression, fraud or coercion.

Essential nature of the internet and its role as an

enabler of fundamental rights
 40
W. BECAUSE the COVID-19 outbreak has necessitated social
distancing and it has made it unsafe for persons anywhere
in India to venture out for any kind of activity, thus
rendering the internet an indispensable tool for carrying out
economic and educational activity. Thus, effective internet
access is now crucial for survival. It is settled law after
PUCL v Union of India, (2013) 10 SCC 1 that fundamental
rights (such as the right to education, right to health, right to
livelihood, right to access justice and the right to know) also
include ancillary guarantees that make those rights
meaningful. In the present case, the Impugned Order by
restricting internet speed to 2G violates these fundamental
rights.

X. BECAUSE this Hon’ble Court has stressed upon the

importance of and directed the use of technology in the
anticipation, prevention and management of disasters under
the Disaster Management Act, 2005. This Hon’ble Court in
Swaraj Abhiyan v. Union of India, 2016 SCC Online SC
485, para 109(6) held “it is high time that State
Governments realize the vast potential of technology and
the Government of India should insist on the use of such
technology in preparing uniform State Management Plans
for a disaster.”

Y. BECAUSE the right to internet connectivity has repeatedly

been recognised by the Government of India as a basic
necessity or an essential service to ensure the exercise of
other rights.
 41
a. The Lockdown Guidelines issued by Respondent
No.2 on 24.03.2020 expressly permitted
telecommunications and internet services to continue
operating despite the nationwide lockdown. Even the
addendum to these Guidelines dated 25.03.2020
added IT vendors for banking operations and data
centres for government related activity to the list of
essential services which were exempted.
b. Similarly, the National Digital Communications
Policy 2018 recognizes that telecom services are
essential in nature and seeks to accord telecom
infrastructure the status of critical and essential
infrastructure. In particular, the Policy emphasizes on
“recognizing communication systems and services as
essential connectivity infrastructure at par with other
connectivity infrastructure like Roadways, Railways,
Waterways, Airlines etc. for development of India.”
c. The importance of technology and the internet is also
evident from the fact that to disseminate accurate
information about the pandemic, Government of
India has launched several initiatives such as the
Ministry of Health’s COVID-19 dashboard and
MyGov India’s WhatsApp chatbot. However, the
residents of Jammu & Kashmir are unable to access
these resources, due to slowdown of internet speed in
the region.

The Impugned Order is arbitrary, disproportionate

and does not comply with the principles laid out in
Anuradha Bhasin (supra) and FMP (supra)
 42
Z. BECAUSE the restriction of mobile internet speed to 2G is
a disproportionate restriction on fundamental rights. This
Hon’ble Court has consistently held that any restriction on
fundamental rights under Articles 19 and 21 must pass the
test of proportionality. Under this test, restrictions upon a
fundamental right must (a) be imposed by law; (b) serve a
legitimate aim; (c) be suitable to achieve that aim (i.e., bear
a rational relationship with the aim); (d) be necessary (i.e.,
the least restrictive alternative available to achieve the said
goal); and (e) must not cause disproportionate harm to the
rights holder. Most importantly, in Anuradha Bhasin
(supra), this Hon’ble Court held that the proportionality
standard - in the manner outlined above - applies squarely
to the case of internet shutdowns and restrictions upon
access to the internet.

Lack of Legality
AA. BECAUSE while the Impugned Order has been
passed under Rule 2(1) of the Telecom Suspension Rules
read with Section 5(2) of the Telegraph Act, it is ultra vires
the Telecom Suspension Rules for violating Rules 2(2),
2(5), and 2(6). Respondent No. 1 has failed to publish any
orders issued by the Review Committee reviewing the
Impugned Order, and in light of this, the Impugned Order
does not have the sanction of law.

Lack of Legitimate Aim

BB. BECAUSE the Impugned Order attempts to justify
the internet restrictions as necessary “due to likelihood of
 43
misuse of the data services by the anti national elements to
disrupt the democratic process.” Despite being used in
popular parlance, the term “anti-national” lacks any
definition under the current law and it is highly susceptible
to misuse. It is worth noting that during the Emergency in
1976, the Government introduced the infamous 42nd
Amendment to the Constitution of India which included
Article 31D for “Saving of laws in respect of anti-national
activities”. Through Article 31D, the Government sought to
shield laws enacted to prevent or prohibit anti-national
activities from being struck down for violating Articles 14,
19 and 31 of the Constitution. Unsurprisingly, Article 31D
became a tool to suppress and punish political opposition
during the Emergency and it was finally omitted from the
Constitution through the 43rd Amendment. It is respectfully
reiterated that “anti-national elements” has no legal
meaning, and its inherent vagueness precludes it from
underpinning any “legitimate aim” under the
proportionality standard.

CC. BECAUSE the Impugned Order does not cite any

actual incidents of violence which would demonstrate the
existence of a public emergency or a threat to public safety
which is necessary under Section 5(2) of the Telegraph Act
and the Telecom Suspension Rules. It is submitted that
unless the requirement of a public emergency under the law
is strictly adhered to, internet restrictions will be imposed in
a routine and permanent manner and they would fall beyond
the ambit of Article 19(2) of the Constitution. Term such as
“overall security situation” which are used in the Impugned
 44
Order are vague (as per the law laid down in Shreya Singhal
v Union of India, 2015 5 SCC 1, paras 59 and 85) since
they conceal and prevent the Court as well as the people
from knowing which areas of Jammu & Kashmir are at risk
of violence to evaluate whether the restrictions have been
tailored to those areas and have not been blanketly imposed.

Lack of Suitability
DD. BECAUSE there exists no rational nexus between
restriction of mobile internet speed to 2G and security of the
State and public order. This is also supported by empirical
evidence which demonstrates that internet shutdowns
actually incentivize those forms of violent collective action
which require less communication and coordination than
peaceful demonstrations.

EE. BECAUSE the internet is an agnostic medium: while

it can be used to spread propaganda and misinformation at
great speed, equally, it can be used to debunk rumours and
provide vital - truthful - information, especially in times of
crises and public health emergencies. For this reason,
experts have cast doubt upon the utility of internet
restrictions, and have suggested that depriving citizens and
authorities of a powerful tool to combat misinformation and
radicalization can actually have a negative effect, instead of
a positive one.

Lack of Necessity
FF. BECAUSE the Impugned Order does not satisfy the
test of necessity as there exist less restrictive alternatives
 45
than a blanket restriction on internet speed to tackle
propaganda and recruitment over the internet as well as use
of the internet by terrorists. Although this Hon’ble Court in
FMP (supra) had directed the Special Committee to
consider the appropriateness of the alternatives suggested
by the petitioners, the Impugned Order shows no
consideration of such alternatives which include:
a. Identification of suspected persons, the interception
of their conversations, and/or the blocking of their
numbers under applicable law based on intelligence
inputs.
b. The blocking of specific websites (“blacklisting”)
that are known to spread terrorism or are used to
recruit terrorists under Section 69A of the IT Act.
c. Restrictions upon internet access in a specific region
for a specific period of time, based upon a specific
intelligence input about a threat.
d. Offline measures, such as the considered and
localised application of Section 144, Cr.P.C. on the
basis of credible and specific intelligence, which can
enforce restrictions on movement.
e. The government has already prohibited internet
access on unverified pre-paid SIM cards. Since
verified pre-paid SIM cards and post-paid
connections can be more easily traced, they are
unlikely to be used for any illegal activity and since
they will be used by ordinary civilians, 4G internet
should be restored on such SIM cards.
 46
f. Awareness programmes and education to counter
propaganda including using the internet itself to
debunk misinformation and propaganda.

GG. BECAUSE in Anuradha Bhasin (supra), this

Hon’ble Court categorically 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.” Further, in
FMP (supra), this Hon’ble Court noted that the orders
issued by Respondent No.1 under the Telecom Suspension
Rules applied to the entire Union Territory and did not
reflect any reasons for imposing restrictions in all the
districts. It is submitted that the Impugned Order does not
comply with this Hon’ble Court’s direction about narrowly
tailoring the geographic expanse and time span of internet
restrictions. Instead, it issues a blanket direction to internet
service providers to slowdown mobile internet speed in 18
out of 20 districts of Jammu & Kashmir, without providing
any reasons which reflect the ground situation in different
districts that may justify the restrictions territorially and
temporally.

Improper Balancing
HH. BECAUSE Jammu & Kashmir only has 0.08 million
wireline broadband subscribers (fixed line connections). In
comparison, the wireless broadband subscriber base
(mobile data) was 5.82 million. This means that there are 73
mobile internet subscribers for 1 fixed line subscriber in
Jammu & Kashmir. As a result, the vast majority of internet
 47
users in Jammu & Kashmir are being denied effective
internet access during the COVID-19 pandemic which has
also made it very difficult for people to access fixed line
connections in schools, offices or government kiosks due to
social distancing requirements.

II. BECAUSE restricting access to 2G internet to all persons

in 18 out of 20 districts of Jammu & Kashmir because a few
people are using it for illegal purposes effectively amounts
to an imposition of collective responsibility, a concept
unknown to civilised jurisprudence and to the Indian
Constitution. In effect, citizens of India in the Union
Territory of Jammu & Kashmir are deprived of equal access
to the internet - and thereby, subjected to a severe
deprivation of their rights, especially in a pandemic - as
compared with citizens from the rest of the country, for no
fault of their own, and not upon the commission of any
crime. In fact, there is a further distinction that has been
drawn amongst the residents of Jammu & Kashmir, with a
minority section having access to full functioning internet
through fixed line connectivity, while the majority has been
restricted to 2G mobile internet access.

JJ. BECAUSE by restricting the internet speed in 18 out of 20

districts of Jammu & Kashmir on account of security
concerns, the Impugned Order treats all residents in these
districts with suspicion of criminal activity. It is respectfully
submitted that the presumption of collective criminality has
long been rejected in our law and jurisprudence: the colonial
Criminal Tribes Act, which punished entire tribes and
 48
indigenous groups as being potentially criminal, was
described as a blot on the Constitution, and was repealed
shortly after independence. In ADM Jabalpur v. Shivkant
Shukla, (1976) 2 SCC 321, Justice Beg justified the
suspension of habeas corpus during the Emergency as
flowing from a “jurisdiction of suspicion”; however, with
the passage of the 44th Amendment and the overruling of
ADM Jabalpur (supra) in KS Puttaswamy v. Union of
India, (2017) 10 SCC 1, the “presumption of criminality”
and the “jurisdiction of suspicion” are no longer
constitutionally valid and rights of citizens cannot be
restricted without probable cause or suspicion. Therefore,
the State must find a strategy that is also mindful of the
rights of millions of ordinary law abiding citizens.

KK. BECAUSE this Hon’ble Court in Anuradha Bhasin

(supra) noted that while the State was best placed to make
an assessment of threat to public peace and tranquillity or
law and order, they were required to “state the material
facts” so as to facilitate judicial review of whether “there
are sufficient facts to justify the invocation of this power”.
Therefore, orders passed under the Telecom Suspension
Rules must be reasoned orders and indicate application of
mind. It is submitted that the present Impugned Order does
not comply with these bare minimum requirements, as laid
down under the Telecom Suspension Rules and the
judgment of this Hon’ble Court in Anuradha Bhasin
(supra), and is, therefore, liable to be struck down.
 49
LL. BECAUSE - it is pertinent to note that the State
having restricted the internet for more than 500 days can no
longer claim that the measure is experimental in nature and
must now demonstrate with concrete evidence the emergent
situation still prevailing in 18 districts to merit such a
significant restriction on fundamental rights nullifying
education in the state, and how the measure is in fact
suitable in reducing terrorism and why less restrictive
measures cannot achieve the same end.

MM. BECAUSE on the principle of non-retrogression, the

rollback of rights that were hitherto guaranteed to the people
of Jammu & Kashmir is unconstitutional. In Navtej Singh
Johar v. Union of India, (2018) 10 SCC 1, paras 201 and
202, this Hon’ble Court was pleased to hold:
“201. The doctrine of progressive realisation of rights, as a
natural corollary gives birth to the doctrine of non-
retrogression. As per this doctrine, there must not be any
regression of rights. In a progressive and an ever-
improving society, there is no place for retreat. The society
has to march ahead. The doctrine of non-retrogression sets
forth that the State should not take measures or steps that
deliberately lead to retrogression on the enjoyment of rights
either under the Constitution or otherwise.”

NN. BECAUSE as clarified by the Israeli Supreme Court

in Beit Sourik Village Council v. The Government of
Israel, HCJ 2056/04, while conducting proportionality
analysis, courts cannot adopt the subjective standard of a
military commander and the question is not whether the
executive believes in good faith that the injury is
proportionate. Instead, the standard is objective and it is a
legal question which must be determined by the judiciary
 50
which is capable of appreciating the humanitarian impact of
a restriction as well.

40. The Petitioner seeks leave of this Hon’ble Court to raise

additional grounds.

41. The Petitioner seeks leave of this Hon’ble Court to

challenge any subsequent orders restricting internet access
in Jammu & Kashmir by way of applications in the
captioned matter in light of the fact that the Impugned Order
is only valid till 25.12.2020 and the restrictions on internet
access may be extended through subsequent orders.

42. The Petitioner has not filed any other petition before this
Hon’ble Court or in any High Court challenging the
constitutional validity of the Impugned Order dated
11.12.2020 passed by Respondent No. 1.

43. The Petitioner submits that there is no other alternative,

equally efficacious remedy available to it.

44. The Petitioner states that it is approaching this Hon’ble

Court as expeditiously as possible and there is no delay or
laches in filing the present Petition.

45. This Hon’ble Court has jurisdiction to entertain, try and

dispose of this Petition under Article 32 of the Constitution
of India.
 51
46. That the Petitioner craves leave to alter, amend or add to this
Petition.
47. That this Petition has been made bona fide and in the interest
of justice.

PRAYER
In the premises, it is most respectfully prayed that this Hon’ble
Court may be pleased to
A. Issue a Writ of Declaration and Mandamus or any other
appropriate Writ, Direction, Order or such other
appropriate remedy to declare the Order issued by
Respondent No. 1, Order No. Home-134 (TSTS) of 2020
dated 11.12.2020, or any subsequent similar orders, as
being illegal, unconstitutional, violative of Articles 14, 19,
21, and 21A of the Constitution of India and thus, void,
and/or,
B. Issue an order or direction directing Respondent No. 1 to
restore 4G mobile internet services in the remaining 18
districts of the Union Territory of Jammu & Kashmir,
and/or
C. Pass such other orders as may be deemed fit in the facts and
circumstances of this case.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS

IN DUTY BOUND SHALL EVER PRAY.
Filed By:

Place: New Delhi SHADAN FARASAT

Filed On: 25.12.2020 ADVOCATE FOR PETITIONER