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Supreme Court of India
Foundation For Media … vs Union Territory Of Jammu And … on 11 May, 2020Author: N.V. Ramana
Bench: R S Reddy, N Ramana
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) ………. OF 2020
(D. No. 10817 OF 2020)
FOUNDATION FOR MEDIA … PETITIONER
PROFESSIONALS
Versus
UNION TERRITORY OF JAMMU … RESPONDENTS
AND KASHMIR & ANR. AND
WRIT PETITION (CIVIL) ………. OF 2020
(D. No. 10875 OF 2020)
SOAYIB QURESHI … PETITIONER
Versus
UNION TERRITORY OF JAMMU … RESPONDENT
AND KASHMIR
AND
WRIT PETITION (CIVIL) ………. OF 2020
(D. No. 10904 OF 2020)
PRIVATE SCHOOLS ASSOCIATION … PETITIONER
J AND K
Versus
Signature Not Verified
Digitally signed by
THE UNION TERRITORY OF JAMMU … RESPONDENT
GEETA AHUJA
Date: 2020.05.11
13:07:37 IST
Reason:
AND KASHMIR
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O R D E R
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 v. 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 nonpermanence 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.
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4. Broadly, the argument of the 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.
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 elearning 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.
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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
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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 General relying on some
judicial pronouncements submitted that the claims of fundamental
rights have to be examined against the larger public interest of
protecting the security of the State, wherein, while balancing the
aforesaid conflicting rights, the security of the nation should
triumph against the fundamental rights of the citizens. Moreover,
in the prevailing circumstances wherein there is continuing
insurgency in the region, the spreading of fake news to incite
violence, etc., it would not be possible to provide full internet
services to the region.
8. Learned Solicitor General vehemently opposed the petitions and
argued that the authorities have strictly complied with the
directions passed by this Court on the previous occasion, and that
the relevant authorities are cognizant of not only the changing
circumstances but also the ground realities. The information
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regarding COVID19 available on various social media platforms,
government websites, applications developed by Respondent No. 2
for disseminating information can be easily downloaded over the
2G internet. Moreover, no restrictions exist over fixed line internet.
Advisories and documents relating to COVID19 have already been
accessed by over 1 lakh health professionals in the Union Territory
of Jammu and Kashmir through fixed line internet. Further, to
ensure effective access to right to health, the Respondent No. 2 is
broadcasting information through various radio channels and
through satellite TV and local cable networks. 1.6 lakh pamphlets
and 90,000 posters in English, Urdu and Hindi are being
disseminated to the public. Wide publicity is also being given to
various helpline numbers which have been established for COVID
19 related queries through print and electronic media. With respect
to the right to education of the students of Jammu and Kashmir,
lessons are being delivered on 16 DD channels at a national level,
and through the radio. The department has also undertaken the
distribution and delivery of textbooks, upto elementary level, to the
eligible students at their homes.
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9. The learned Solicitor General also highlighted the fact that over
108 terrorist incidents have taken place in the recent past, between
August 05, 2019 to April 25, 2020 in the Union Territory of Jammu
and Kashmir. In view of the aforesaid fact, the learned Solicitor
General submitted that the current situation in the Union Territory
of Jammu and Kashmir is very grave and volatile, even referring to
the recent terrorist activity in Kupwara District. The learned
Solicitor General therefore submitted that the authorities have
calibrated the restrictions based on the requirement so as to
reduce the misuse of internet and that the measures adopted by
the authorities are reasonable. He therefore prayed that the
present petitions ought to be dismissed.
10. Before parting with the submissions of the parties, it may be stated
that Respondent No. 1 submitted an additional note dated May 06,
2020, after the hearing of the matter was concluded, wherein
recent terrorist activities in the region, and the interest shown by
the Pakistani military regarding the political developments in
Kashmir, were highlighted. Petitioners in W.P. (C) D. No. 10817 of
2020 and W.P. (C) D. No. 10875 of 2020 filed responses to the
same on May 07, 2020 and May 06, 2020 respectively. Although
the Petitioners have objected to the note filed by the Respondent
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No. 1, taking into consideration the farreaching consequences of
the issues involved herein, we have considered the submissions of
both parties.
11. Heard both the parties, and perused the documents placed before
us.
12. At the outset, we have already laid down that the fundamental
rights of citizens need to be balanced with national security
concerns, when the situation so demands. This Court is cognizant
of the importance of these matters for the national security
concerns, and takes the same with utmost seriousness to ensure
that citizens enjoy life and liberty to the greatest possible extent.
National security concerns and human rights must be reasonably
and defensibly adjusted with one another, in line with the
constitutional principles. There is no doubt that the present
situation calls for a delicate balancing, looking to the peculiar
circumstances prevailing in the Union Territory of Jammu and
Kashmir. Before considering the relief sought by the Petitioners, it
is necessary to look at the steps taken by Respondent No. 1 after
the pronouncement of the earlier judgment of this Court in
Anuradha Bhasin (supra). For, convenience, the table below
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indicates the orders which have been passed since 10.01.2020
(post Anuradha Bhasin (supra) judgment):
ORDER IMPLICATION
Home03 (TSTS) of For Kashmir, fixed line connectivity to
2020 institutions managing essential services like
14.01.2020 hospitals, after installation of firewalls and
whitelisting.
2G mobile internet to postpaid users to
access whitelisted sites in Jammu, Samba,
Kathua, Udhampur and Reasi.
No social media or VPNs.
Number of whitelisted sites: Not mentioned
Home04 (TSTS) of Fixed line connectivity to also be provided to
2020 IT/software companies.
18.01.2020
2G mobile internet for postpaid users in all
districts of Jammu and Kupwara and
Bandipora in Kashmir for accessing white
listed sites.
Prepaid connections will be provided mobile
internet only after verification by TSPs as per
applicable norms
Home05 (TSTS) of Fixed line connectivity with MAC binding.
2020 Access only to whitelisted sites.
24.01.2020
2G mobile internet restored in all districts of
J&K for postpaid and verified prepaid
customers but only whitelisted sites can be
accessed. No social media or VPNs
Home08 (TSTS) of Restrictions mentioned in the Order dated
2020 24.01.2020 will continue.
31.01.2020
Number of whitelisted sites: 329
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Home 09 (TSTS) of Restrictions mentioned in Order dated
2020 31.01.2020 will continue.
07.02.2020
Number of whitelisted sites: 481
Home13 (TSTS) of Fixed Line connectivity with MAC binding.
2020 Access only to whitelisted sites.
15.02.2020
2G mobile internet for postpaid and verified
prepaid customers but only whitelisted sites
can be accessed.
No social media or VPNs.Home16 (TSTS) of Restrictions in Order dated 15.02.2020 will
2020 continue to apply.
24.02.2020
Number of whitelisted sites: 1674
Home17 (TSTS) of 2G mobile internet for postpaid and verified
2020 prepaid customers and access allowed to all
04.03.2020 websites.
Fixed line connectivity with MAC binding to
access all sites.Home20 (TSTS) of Restrictions in Order dated 04.03.2020 will
2020 continue to apply.
17.03.2020
Home21 (TSTS) of 2G mobile internet for postpaid & verified
2020 prepaid customers to access all websites.
26.03.2020
Fixed line connectivity with MAC binding to
access all sites
Home22 (TSTS) of Restrictions in Order dated 26.03.2020 will
2020 continue to apply. 03.04.2020
Home28 (TSTS) of 2G mobile internet for postpaid customers &
2020 verified prepaid customers to access all
15.04.2020 websites.
Fixed line connectivity with MAC binding to
access all websites without any speed
restrictions.
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Home34 (TSTS) of 2G mobile internet for postpaid customers &
2020 verified prepaid customers to access all
27.04.2020 websites.
Fixed line connectivity with mac binding to
access all websites without any speed
restrictions.
13. The above measures taken by the Respondent No. 1 have to be
seen in light of the circumstances already highlighted by the
learned Solicitor General regarding the existing law and order and
national security situations in the Union Territory, and the
occurrence of incidents that affect the integrity of the nation. The
learned Solicitor General stated that since 05.08.2019, around 108
terrorist related incidents have taken place in Union Territory of
Jammu and Kashmir, wherein 99 incidents were reported from the
Kashmir province and 09 from Jammu province. In total, 30
civilians have lost their lives and 114 civilians have been injured.
Further, more than 20 security personnel have been martyred and
54 security personnel have been injured. Moreover, 76 terrorists
have been gunned down. These facts have not been rebutted by the
Petitioners. This Court will have to consider the above in its
analysis. It may be important to note that after this matter was
reserved for orders, the Union Territory of Jammu and Kashmir
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has filed another note, indicating that the militancy has
significantly increased in the recent times, in the following manner:
DATE INCIDENT DISTRICT CONSEQUENCE
26.04.2020 Encounter at Kulgam 01 person died
Gudder Kulgam
27.04.2020 Encounter at Kulgam 03 terrorists killed
Lower Munda 02 security force
Qazigund Kulgam personnel injured
28.04.2020 Encounter at Shopian 03 terrorists killed
Melhoora 02 security personnel
Zainpora injured
01 civilian injured
29.04.2020 Grenade attack Srinagar 04 CISF personnel
on police injured
deployment at 01 police personnel
Nowhatta injured
Srinagar
02.05.2020 Encounter at Pulwama 02 terrorists killed
Dangarpora
02.05.2020 Encounter at Kupwara 02 terrorists killed
Najar Mohalla 04 army personnel
Chanjimulla killed including two
Handwara senior officers
01 Police SI killed
01 SF personnel
injured
02.05.2020 Grenade attack Pulwama No damage caused
upon CRPF at
Tahab Pulwama
03.05.2020 Grenade attack Srinagar No damage caused
upon SFs at
Nowshera
Srinagar
04.05.2020 Firing attack on Kupwara 03 CRPF personnel
CRPF at Wangam killed
Karlgund 01 Civilian killed
Handwara 01 CRPF personnel
crossing injured
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04.05.2020 Grenade attack Srinagar 01 CISF personnel
upon CISF injured
Bunker at Grid
Station Wagoora
Nowgam Srinagar
05.05.2020 Grenade attack Budgam 01 CRPF personnel
on police injured
deployment at 01 Police personnel
Pakharpora injured
Budgam 04 civilians injured
Respondent No. 1 has also pointed to certain material, which
indicate that cyber terrorism, is on the rise within the valley. The
Respondent No. 1, has brought to the notice of this Court that the
Pakistani Military in its “Green Book 2020” has called for an
information warfare on Kashmir, after the revocation of special
status of Jammu and Kashmir.
14. 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.
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15. However, the authorities in the Union Territories of Jammu and
Kashmir have selected the 2G speed to restrict the flow of
information in order to prevent misuse of data by terrorists and
their supporters to disturb the peace and tranquility of the Union
Territory of Jammu and Kashmir.
16. In any case, we may note that the common thread in the impugned
orders is that they have been passed for the entire Union Territory
of Jammu and Kashmir. In this regard, our observations in the
Anuradha Bhasin (supra) may be of some relevance:
“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.”
Although the present orders indicate that they have been passed
for a limited period of time, the order does not provide any reasons
to reflect that all the districts of the Union Territory of Jammu and
Kashmir require the imposition of such restrictions. At the same
time, we do recognize that the Union Territory of Jammu and
Kashmir has been plagued with militancy, which is required to be
taken into consideration. These competing considerations needs to
calibrated in terms of our judgment in Anuradha Bhasin (supra).
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17. One of the criteria for testing the proportionality of the orders is the
territorial extent of the restrictions. In view of the observations
made in Anuradha Bhasin (supra), for meaningful enforcement of
the spirit of the judgment, inter alia, the authorities are required to
pass orders with respect to only those areas, where there is
absolute necessity of such restrictions to be imposed, after
satisfying the directions passed earlier.
18. In this regard, our attention is drawn to the fact that blanket
orders have been passed for the entire territory rather than for
specific affected areas.
19. A perusal of the submissions made before us and the material
placed on record indicate that the submissions of the Petitioners,
in normal circumstances, merit consideration. However, the
compelling circumstances of cross border terrorism in the Union
Territory of Jammu and Kashmir, at present, cannot be ignored.
20. Additionally, although the Petitioners have argued that the orders
passed by Respondent No. 1 reveals nonapplication of mind,
however, at the cost of repetition, it must be noted that the
authorities have been taking steps towards easing of internet
restrictions taking into account the prevailing circumstances. This
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can 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. Further, the various steps
taken by Respondent No. 1 with respect to ensuring the
fundamental rights of the people, in relation to the existing COVID
19 pandemic, must also be taken into account.
21. During the course of the arguments, the Respondent No. 2 Union
of India has submitted that continuous infiltration, foreign
influence, violent extremism and issues of national integrity are
prevalent in the Union Territory of Jammu and Kashmir, which are
serious issues.
22. In Anuradha Bhasin (supra), this Court has alluded to the fact
that modern terrorism is being propagated through the internet
and by using technology in the following manner:
“39. Modern terrorism heavily relies on the
internet. Operations on the internet do not
require substantial expenditure and are not
traceable easily. The internet is being used to
support fallacious proxy wars by raising
money, recruiting and spreading
propaganda/ideologies. The prevalence of the
internet provides an easy inroad to young
impressionable minds….”
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23. At the same time, the Court is also cognizant of the concerns
relating to the ongoing pandemic and the hardships that may be
faced by the citizens. It may be noted that in the earlier judgment
of Anuradha Bhasin (supra) this Court had directed that, under
the usual course, every order passed under Rule 2(2) of the
Telecom Suspension Rules restricting the internet is to be placed
before a Review Committee which provides for adequate procedural
and substantive safeguards to ensure that the imposed restrictions
are narrowly tailored. However, 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. We,
therefore, find it appropriate to constitute a Special Committee
comprising of the following Secretaries at national, as well as State,
level 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:
a. The Secretary, Ministry of Home Affairs (Home Secretary),
Government of India.
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b. The Secretary, Department of Communications, Ministry
of Communications, Government of India.
c. The Chief Secretary, Union Territory of Jammu and
Kashmir
The aforesaid Special Committee shall be headed by the Secretary,
Ministry of Home Affairs (Home Secretary), Government of India.
24. The 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.
25. The writ petitions are disposed of in the aforestated terms.
Pending applications, if any, shall also stand disposed of. The
Registry is directed to communicate this order, along with a copy of
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the paperbooks of the present petitions, to the aforesaid Special
Committee.
………………………….J.
(N.V. RAMANA)
………………………….J.
(R. SUBHASH REDDY)
…………………………J.
(B.R. GAVAI)
NEW DELHI;
MAY 11, 2020.
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