Context: Recently, the Supreme Court refused to restore 4G services in Jammu & Kashmir and ordered setting up of a high-powered committee to look into the contentions raised by petitioners against limited 2G services in the Union Territory.
Key Points

• The central government had imposed a complete internet shutdown in the erstwhile state of Jammu and Kashmir in August 2019, after scrapping Article 370 which gave J&K its special status. Eight months later, it restored internet services partially, to allow 2G speed for mobile users.
• The court heard arguments by the Jammu and Kashmir government, which focussed on the need for slow internet speed to curb instances of terrorism and violence in the region.
• The administration also submitted that the right to internet access is not a fundamental right and the state can curtail the freedom of speech and right to trade through the internet.
• It called the internet speech curbs reasonable and asserted that these were necessary to protect the sovereignty, integrity and security of the country.
• The petitioner highlighted the need for maintaining the fundamental right to access of healthcare in times of a pandemic.It is also said that the impact of slow internet on education, contending that students cannot attend classes through video conferencing because of the slow speed of the internet.

Verdict of Court

• The Supreme Court said that a special committee led by the Ministry of Home Affairs secretary should be constituted to look into whether 4G internet services should be restored in the Union Territory of Jammu and Kashmir.
• The committee will also include the Department of Communications Secretary of the Union Ministry of Communications and the Chief Secretary of the Union Territory of Jammu and Kashmir.
• This committee has been asked to look into the petitioners’ contention, as well as examine the alternatives suggested by them, on allowing faster internet on a trial basis in areas wherever possible.
• This court has to ensure national security and human rights are balanced. We do recognise that the UT has plunged into a crisis. At the same time the court is cognizant to the concerns Related to Ongoing Pandemic and Hardships.
• The SC also referred to the judgment in the Anuradha Bhasin case, popularly known as the Kashmir internet Shutdown Case.

About Anuradha Bhasin case verdict

• The Court said that all restrictive orders under Section 144 of CrPC and suspension of internet services in Jammu and Kashmir have to be reviewed.
• The verdict has laid down a framework of how the Internet can be suspended, and what rights and legal recourses a citizen has when it is suspended.
• Right to internet is a fundamental right (subject to reasonable restrictions) included in the freedom of expression under Article 19 of the Indian Constitution.
• Restrictions on fundamental rights could not be in exercise of arbitrary powers. These freedoms could only be restricted as a last resort if “relevant factors” have been considered and no other options are there.
• Any order passed to restrict or suspend judicial scrutiny will be subject to judicial scrutiny.
• Suspension of internet services indefinitely is also a violation of telecom rules.

SC on section 144

• Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights.
• When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”.
• The imposition of Sec 144 must strike a balance between the rights of the individual and the concerns of the state.
• Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review.

What are the Criticisms Made?

• Restrictions have virtually abrogated the fundamental rights and paralyzed the lives of seven million people in the region.
• These restrictions have been imposed under the garb of public tranquillity, public order and national security, but national security does not appear in the order imposing Section 144 of the Criminal Procedure Code in the region.
• The shutdown of internet services has severe consequences on business, trade and heavily affects the common people in the region.
• What Procedure does the Government follow to Suspend Internet Services?
• The Information Technology Act, 2000, the Criminal Procedure Code (CrPC), 1973 and the Telegraph Act, 1885 are the three laws that deal with suspension of Internet services.
• But before 2017, Internet suspension orders were issued under section 144 of the CrPC.
• In 2017, the central government notified the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules under the Telegraph Act to govern suspension of Internet. These Rules derive their powers from Section 5(2) of the Indian Telegraph Act, which talks about interception of messages in the “interests of the sovereignty and integrity of India”.
• Despite the 2017 rules, the government has often used the broad powers under Section 144.
• India also tops the list of Internet shutdowns globally. According to Software Freedom Law Centre’s tracker, there have been 381 shutdowns since 2012, 106 of which were in 2019.

What did the Judgment say on the Rules to be followed?

• The court recognised that the 2017 Rules are the only procedure to be followed to suspend Internet services in the occurrence of a “public emergency” or for it to be “in the interest of public safety”.
• The verdict reiterated that the competent authority to issue an order under the Suspension Rules, in ordinary circumstances, would be the Secretary to the Ministry of Home Affairs.
• The Rules also say that in case the confirmation does not come from a competent authority, the orders shall cease to exist within a period of 24 hours.
• Clear reasons for such orders need to be given in writing, and need to be forwarded to a Review Committee by the next working day.
• The confirmation must not be a mere formality, but must indicate independent application of mind by the competent authority to the order passed by the authorised officer, who must also take into account changed circumstances if any, etc.
• According to the Temporary Suspension of Telecom Services [Public Emergency or Public Service] Rules, 2017 only the Home Secretary of the country and a secretary of a state’s home department can pass such an order.
• These also state that any such order should be taken up by a review committee within five days.