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2020 Supreme(SC) 368
SUPREME COURT OF INDIA
N.V. Ramana, R. Subhash Reddy, B.R. Gavai, JJ.
FOUNDATION FOR MEDIA PROFESSIONALS – PETITIONER
Versus
UNION TERRITORY OF JAMMU AND KASHMIR & ANR. – RESPONDENTS
WRIT PETITION (CIVIL) ………. OF 2020 (D. No. 10817 OF 2020)
AND
SOAYIB QURESHI – PETITIONER
Versus
UNION TERRITORY OF JAMMU AND KASHMIR – RESPONDENT
WRIT PETITION (CIVIL) ………. OF 2020 (D. No. 10875 OF 2020)
AND
PRIVATE SCHOOLS ASSOCIATION J AND K – PETITIONER
Versus
THE UNION TERRITORY OF JAMMU AND KASHMIR – RESPONDENT
WRIT PETITION (CIVIL) ………. OF 2020 (D. No. 10904 OF 2020)
Decided on : 11-05-2020
For the Appellant :Huzefa Ahmadi, Shadan Farasat, Charu Ambwani, Advocates
For the Union of India :K.K. Venugopal, AG. Ankur Talwar, B.V. Balaram Das, Advocates
For the U.T. of Jammu and Kashmir :Tushar Mehta, SG Shashi Juneja, Advocate
IMPORTANT POINTS
(1) Imposition of restrictions on Internet in Union Territory of Jammu and Kashmir – Fundamental rights of citizens need to be balanced with national security concerns, when situation so demands.
(2) Imposition of restrictions on Internet in Union Territory of Jammu and Kashmir – Compelling circumstances of cross border terrorism in Union Territory of Jammu and Kashmir, at present, cannot be ignored.
Headnote:
Constitution of India – Articles 19(1)(g) and 21 – Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 – Imposition of restrictions on Internet in Union Territory of Jammu and Kashmir – Fundamental rights of citizens need to be balanced with national security concerns, when situation so demands – National security concerns and human rights must be reasonably and defensibly adjusted with one another, in line with constitutional principles – Present situation calls for a delicate balancing, looking to peculiar circumstances prevailing in Union Territory of Jammu and Kashmir – Cyber terrorism is on rise within valley – Respondent No. 1, has brought to notice of this Court that Pakistani Military in its “Green Book 2020” has called for an information warfare on Kashmir, after revocation of special status of Jammu and Kashmir – While it might be desirable and convenient to have better internet in present circumstances, wherein there is a worldwide pandemic and a national lockdown – However, fact that outside forces are trying to infiltrate borders and destabilize integrity of nation, as well as cause incidents resulting in death of innocent citizens and security forces every day cannot be ignored – Authorities in Union Territories of Jammu and Kashmir have selected 2G speed to restrict flow of information in order to prevent misuse of data by terrorists and their supporters to disturb peace and tranquility of Union Territory of Jammu and Kashmir – Union Territory of Jammu and Kashmir has been plagued with militancy which is required to be taken into consideration – Compelling circumstances of cross border terrorism in Union Territory of Jammu and Kashmir, at present, cannot be ignored – However, order does not provide any reasons to reflect that all districts of Union Territory of Jammu and Kashmir require imposition of such restrictions – Since issues involved affect the State and nation, Review Committee which consists of only State level officers, may not be in a position to satisfactorily address all issues raised – It is appropriate to constitute a Special Committee comprising of Secretaries at national as well as State level to look into prevailing circumstances and immediately determine necessity of continuation of restrictions in the Union Territory of Jammu and Kashmir – Special Committee shall be headed by Secretary, Ministry of Home Affairs (Home Secretary), Government of India. (Paras 12, 13, 14, 15, 16, 19, 23 and 24)
Facts of the Case:
Petitioners are aggrieved by the fact that Respondent No. 1 has restricted the mobile internet speed to 2G and have approached this Court seeking 4G mobile internet, and quashing of the impugned orders restricting internet in the Union Territory of Jammu and Kashmir. Court is called upon to address a very important but a sensitive issue on national security and human rights. Argument of Petitioners is premised on the ground that in the existing COVID19 situation, when there is a national lockdown, the restrictions imposed on the residents of the entire Union Territory of Jammu and Kashmir impacts their right to health, right to education, right to business and right to freedom of speech and expression.
Findings of the Court:
Special Committee is directed to examine the contentions of, and the material placed herein by, the Petitioners as well as the Respondents. The aforesaid Committee must also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise the Respondent No. 1 regarding the same, in terms of our earlier directions.
Result : Writ Petitions disposed of with directions.
ORDER
1. Again, this Court is called upon to address a very important but a sensitive issue on national security and human rights, wherein we have to ensure that national security and human rights can be reasonably and defensibly balanced, a responsibility, that this Court takes with utmost seriousness.
2. This Court, vide its earlier judgment dated 10.01.2020 in Anuradha Bhasin vs. Union of India, (2020) SCC Online SC 25, gave certain directions regarding the imposition of restrictions on the internet in a proportionate manner. The aforesaid case had, in addition to the procedural rules, supplemented the requirements of having timely review and the non-permanence of internet shutdown orders.
3. The three Petitioners before us are aggrieved by the fact that Respondent No. 1 has restricted the mobile internet speed to 2G and have approached this Court seeking 4G mobile internet, and the quashing of the impugned orders restricting internet in the Union Territory of Jammu and Kashmir.
4. Broadly, the argument of the Petitioners is premised on the ground that in the existing COVID-19 situation, when there is a national lockdown, the restrictions imposed on the residents of the entire Union Territory of Jammu and Kashmir impacts their right to health, right to education, right to business and right to freedom of speech and expression.
5. They submit that access to internet acquires even more importance under the prevailing circumstances in the country, relating to the pandemic. The Petitioners contended that the fulfillment of the right to health is dependent on the availability of effective and speedy internet in order to access medical services and information on containment strategies. The denial of such critical information not only violates the peoples' right to receive information, but is also a denial of their right to health. Furthermore, the Petitioners contend that restrictions on internet speed directly impacts the students of Jammu and Kashmir to exercise their right to education as they are unable to access to e-learning services such as online video classes, and other online educational content. This not only impacts their continuing education, but also disadvantages the students of Jammu and Kashmir who are preparing for national/competitive exams. Petitioner in W.P. (C) D. No. 10817 of 2020, has 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, to support the above submissions.
6. Moreover, the Petitioners have argued that the actions of Respondent No. 1 are violative of the directions laid down by this Court in Anuradha Bhasin (supra) as well as the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 ["Telecom Suspension Rules"] as no Review Committee has been constituted by the Respondent No. 1. Further, the blanket orders passed by Respondent No. 1, indicates non-application of mind. Lastly, Respondent No. 1 has failed to provide any rational nexus between the restriction of the internet speed and national security. The Petitioners submitted that since the introduction of internet in the Union Territory of Jammu and Kashmir, the number of incidents relating to terrorism in the region have actually reduced. Lastly, the Petitioners pleaded in the alternative that if the Respondents apprehend the misuse of data services, then they could consider restricting the internet only in certain problematic areas or providing 3G/4G internet to certain regions on a trial basis.
7. The learned Attorney General preliminarily contended that Courts should not step into issues of national security which are best left to those in charge of policy making [refer to Zamora, (1916) 2 AC 77 (PC)]. Further, the learned Attorney G
