BALANCING NATIONAL SECURITY AND HUMAN RIGHTS- THE SUPREME COURT’S KATZENJAMMER IN THE UT OF J&K

While the internet has reduced the loneliness of lockdown for many, there are a few who do not have the luxury of internet yet. When some of those few registered their protest before the Apex Court of this country, our government submitted before the Hon’ble Supreme Court that the security of the nation should triumph against the fundamental rights of the citizens. The approach does not seem to be problematic provided the formula is applied in the most cautious and well-meaning manner. The legal safeguards envisaged under the Temporary Suspension of Telecom Service (Public Emergency or Public Safety) Rules, 2017 (‘Telecom Suspension Rules, 2017’), framed under Section 7 of the Telegraph Act, 1885, have been taking the centrestage in such proceedings and must be strictly adhered to. The present post is an informative piece extracting the sum and substance of the Hon’ble Supreme Court’s judgment in ‘Foundation for Media Professionals vs Union Territory of Jammu Kashmir & Anr., (D No. 10817/2020) delivered on 11th May 2020. 

The approach adopted by the Apex Court centers around its earlier judgment dated 10.01.2020 in Anuradha Bhasin v. Union of India, (2020) SCC Online SC 25 (‘Anuradha Bhasin’), wherein it directed adoption of proportionality principle in issuance of internet shutdown orders. The Court also supplemented the procedural rules with the requirement of having timely review and the non-permanence of such orders. 

Petitioner’s Arguments

The Petitioners were aggrieved by the fact that the Union Territory of J & K (‘UTJK’) had restricted the mobile internet speed to 2G and have approached this Court seeking the quashing of the orders restricting internet speed to 2G in UTJK. It was agitated that the restriction impacted their right to health (restricted access to medical services and information on containment strategies), right to education (restricted access to e-learning services such as online video classes), right to business and right to freedom of speech and expression. The Petitioners also appended the affidavits of a journalist who collected testimonies of doctors, teachers, students, journalists, lawyers and business persons from the Union Territory, and of a technical expert narrating importance of 4G internet. 

The Petitioners further submitted that no Review Committee had been constituted by the UTJK under Rule 2(2) of the Telecom Suspension Rules, 2017, the blanket orders passed indicated non-application of mind and lack of rational nexus between the restriction of the internet speed and national security. They went to the extent of submitting that resumption of internet services coincided with reduction of terrorist incidents. 

The UTJK’s arguments, as usual, revolved around the crucible of national security being supreme consideration. The arguments backed by facts and stats showing increased militancy and loss of lives of armed forces personnel and civilians were submitted. It was urged that removal of all restrictions in accessing internet would give thrust to fake news. It was further submitted to the Court that Cyber Terrorism was on rise within the valley and after the revocation of special status of Jammu and Kashmir, the Pakistani Military in its “Green Book 2020” has called for an information warfare on Kashmir. The Petitioners did not rebut such facts. 

Court’s approach

The Court, in its characteristic approach in such matters, stated that enjoyment of life and liberty to the greatest possible extent by the citizens has to be ensured. It was laid down that- “National security concerns and human rights must be reasonably and defensibly adjusted with one another, in line with the constitutional principles.” The use of the word ‘defensibly’ appears to introduce an element of responsibility, answerability and accountability on the part of any government resorting to invocation of such powers. 

Thereafter, it proceeded to observe that- “While it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown. However, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored.”. 

The Court looked at all the orders of the Home Secretary, UTJK passed from 14.01.2020 to 27.04.2020 to check the on-ground compliance of Anuradha Bhasin. It expressed its discomfiture with the fact that Home Secretary’s orders were passed for the entire UTJK without mentioning any reasons for doing so. It reproduced its following observations from Anuradha Bhasin- “The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.” The Court called for calibration and fine-tuning of the orders in light of such directions passed in Anuradha Bhasin. 

The Court stated that the Petitioner’s concerns were valid but the circumstances in UTJK are not normal for such concerns to be considered in their entirety. The Court did not find favour with the Petitioner’s charge that the orders suffered from non-application of mind and it stated that it was evident from the Home Secretary’s orders that the restrictions were being lifted in a gradual manner. This could be seen from the fact that initially only whitelisted websites were allowed, before internet access to all websites was provided on broadband, and finally to postpaid and verified prepaid mobile users as well, although at 2G speeds. 

Lastly, in lieu of the Review Committee envisaged under Rule 2(2) of the Telecom Suspension rules which had been mandated by the Court to review all orders in Anuradha Bhasin, the Court directed formation of a Special Committee comprising the following- 

1. The Secretary, Ministry of Home Affairs (Home Secretary), Government of India (‘GoI’).

2. The Secretary, Department of Communications, Ministry Communications, GoI.

3. The Chief Secretary, UTJK. 

The Committee shall be headed by the Home Secretary, GoI. The Court has mandated the Committee to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir. The Court has relegated the Petitioner to this Special Committee, and has directed the Committee to examine the contentions of both the parties and to examine the viability of alternatives suggested by the Petitioner in terms of Anuradha Bhasin

. The Committee shall thereafter advise UTJK. 

The rationale for constituting such Special Committee was conveyed by the Court observing that- “...we are of the view that since the issues involved affect the State, and the nation, the Review Committee which consists of only State level officers, may not be in a position to satisfactorily address all the issues raised.” 

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