By Varun Kannan
In this piece, I aim to discuss the internet suspension in Jammu & Kashmir, which commenced on 4th August 2019, and has held fort till today. I shall argue that the crux of this internet suspension is the manner in which in hinders access to information – which has a domino effect that results in adverse civil and socio-economic consequences for the Kashmiri community.
Background
Before proceeding with our discussion, it is pertinent to recall that the absolute ban on internet access in Jammu & Kashmir was challenged in the Supreme Court in the Anuradha Bhasin case[i]. In Anuradha Bhasin, the Court only directed the Central Government and the Jammu & Kashmir Administration to ‘review’ their internet suspension orders on a weekly basis. The Court laid down a stringent proportionality standard to review the validity of internet suspension orders – but refused to apply its own standard and grant relief to the petitioners. It ultimately deferred to the Central Government’s claims of a threat to national security. The Court looked at this issue from the perspective of Article 19(1)(a) and 19(1)(g) of the Constitution, by holding that freedom of speech and freedom to carry on trade, business and occupation with the internet as a medium deserves constitutional protection.
One aspect that the Court did not elaborate upon was that the internet as a medium is crucial for having access to information. In decisions such as Union of India v. Association for Democratic Reforms, the Court has read in the ‘right to be informed’ into the ambit of the ‘freedom of speech and expression’ conferred by Article 19(1)(a).[ii] This ‘right to be informed’ refers to having access to certain categories of information, such as criminal records of candidates contesting an election. Taking this principle forward, I would argue that the right to access information through the internet as the medium can also be considered as integral to Article 19(1)(a).
As of today, the ban has only been partially restored, with around 300 whitelisted websites being made available solely[iii] on 2G mobile internet network. Despite this relaxation, there is still effectively a ban on the internet in Kashmir, as 2G mobile internet speeds are not sufficient for conducting most internet-oriented activities. It is for precisely these reasons that a fresh petition[iv] has been filed before the Supreme Court, demanding the restoration of 4G mobile internet services in the State. Irrespective of the outcome of this petition, where the Supreme Court has currently reserved[v] its order, it is imperative to keep note of the larger constitutional implications of this internet suspension, which shall be highlighted below.
Constitutional implications of suppressing access to information
As we discussed above, the internet ban prevents the residents of Jammu & Kashmir from having access to essential information, along with preventing them from communicating and disseminating information, Such denial of access to information leads to two adverse consequences, which have significant constitutional implications.
First, this lack of information access hinders the residents of Jammu & Kashmir from effectively participating in national affairs. Such freedom of expression through active democratic participation in national affairs can be considered as an integral aspect of Article 19(1)(a), which stands violated. Let us refer to two specific instances to highlight how effective democratic participation of the residents in national affairs is hindered:
- Lack of internet access hinders doctors and researchers of J & K from contributing to COVID-19 related research and development, as 2G speed is not sufficient for uploading information, as well as downloading existing information that is in the public domain. Unlike doctors from the rest of India, doctors and researchers in J & K shall be hindered from uploading, sharing and disseminating the knowledge that they may have imbibed while treating COVID-19 patients.
They are also hindered from sharing and disseminating the research that they may have undertaken, regarding different aspects of Covid-19. 2G internet speed acts as a roadblock for such sharing of knowledge and research, which is being undertaken in all other parts of India. Such participation and contribution to national affairs by sharing and disseminating knowledge is an integral facet of Article 19(1)(a), which clearly stands violated.
- The deficient speeds of the 2G network hinders the preparation efforts of those who wish to give competitive examinations such as CLAT and UPSC. Deficient internet leads to a situation where unlike aspirants from the rest of India, they cannot access multiple preparation resources that are solely available online. Denial of online sources leads to a situation where they do not have equal opportunities and avenues for preparation, when compared to students from the rest of India.
Such denial of equal opportunity by suspending internet services goes against the cardinal tenet of Article 14 of the Constitution, which is that ‘equals should be treated equally’.[vi] This denial of equal opportunity to participate in national affairs such as competitive examinations is one discriminatory consequence of this internet suspension.
The second adverse effect of this information suppression is on the right to access quality healthcare facilities during the pandemic. Access to quality healthcare facilities during a pandemic can be considered as an intrinsic aspect of the right to health – which is part of Article 21.[vii] Lack of internet access may lead to deleterious consequences especially for doctors and healthcare workers who are treating COVID-19 patients, as they may be unable to access research and best practices that are being developed and updated by medical institutions such as the ICMR. Furthermore, patients shall also not be able to obtain online telemedicine facilities provided by doctors, which is currently available throughout India.[viii] This internet restriction may hence result in depriving access to other socio-economic rights, such as the right to health.
This serves as an epitome of the manner in which suppression of civil and political rights conferred by Article 19(1)(a) may also result in unintended consequences, such as hindering access to other socio-economic rights[ix], such as the right to access quality healthcare facilities during a pandemic. Along with looking at this internet ban from the perspective of the proportionality doctrine (as the Court did in Anuradha Bhasin), we should also keep note of the larger constitutional implications that have been referred to above.
Conclusion
The above discussion highlights the domino effect that suppression of information can have. Along with infringing civil rights, such suppression of information also infringes on socio-economic rights, and has led to the institutional exclusion of the Kashmiri community as a whole. Irrespective of judicial outcomes, we, as members of civil society, should keep note of the chain of adverse effects that this internet suspension has had on the constitutional rights of the residents of Jammu & Kashmir.
The author is a final year student at NUJS, Kolkata. He would like to thank Rohit Sharma, Editor at JILS, for his kind assistance.
(Postscript: This piece was written prior to the Supreme Court’s order in the Foundation of Media Professionals case, where the Court constituted a Special Committee headed by the Union Home Secretary to ‘examine’ whether 4G internet services can be restored. The Supreme Court’s 0rder has hence not altered the status quo in any manner.)
[i] Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25.
[ii] Union of India v. Association for Democratic Reforms, (2002) 3 SCR 294.
[iii] Scroll.in, Jammu & Kashmir: Social media ban revoked after nearly seven months but 2G internet speed remains, 4th March 2020, available at https://scroll.in/latest/955160/jammu-and-kashmir-social-media-ban-revoked-after-nearly-seven-months-but-2g-internet-speed-remains (last accessed on 29th April, 2020).
[iv] Shruthi Mahajan, Plea filed in Supreme Court to restore 4G speed for mobile data services in Jammu & Kashmir, Bar and Bench, 2nd April 2020, available at https://www.barandbench.com/news/litigation/plea-filed-in-supreme-court-to-restore-4g-speed-for-mobile-data-services-in-jammu-kashmir (last accessed on 29th April 2020).
[v] Debayan Roy, Supreme Court reserves judgment in plea to restore 4G internet in Jammu & Kashmir, Bar and Bench, available at https://www.barandbench.com/news/litigation/supreme-court-reserves-judgment-in-plea-to-restore-4g-internet-in-jammu-kashmir (last accessed on 29th April 2020).
[vi] State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. See also Dr. Subramanian Swamy v. Director, Central Bureau of Investigation, (2014) 8 SCC 682.
[vii] See Generally, Mohd Ahmed (Minor) v. Union of India, 2014 SCC OnLine Del 1508 [Delhi High Court].
[viii] Rashmi Mabiyan, Covid-19 Lockdown 2.0: telemedicine in India to see continued growth, Economic Times Health World, 16th April 2020, available at https://health.economictimes.indiatimes.com/news/health-it/covid-19-lockdown-2-0-telemedicine-in-india-to-see-continued-growth/75172147 (last accessed on 29th April 2020)
[ix] See generally, Linda Keller, The Indivisibility of Economic and Political Rights, Human Rights and Human Welfare, 2001, available at https://www.du.edu/korbel/hrhw/volumes/2001/1-3/keller-sen.pdf (last accessed on 29th April 2020).
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