10817 of 2020
Right to Education.
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.This Court, vide its earlier judgment 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 non permanence of internet shutdown orders. 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. Broadly, the argument of the Petitioners is premised on the ground that in the existing COVID 19 situation, when there is a national lockdown, there strictions 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. 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.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..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. The learned Solicitor General also highlighted the fact that over 108 terrorist incident shave 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 there strictions based on the requirement so as to reduce the misuse of internet and that the measures adopted by the authorities are reasonable. 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 indicates the orders which have been passed since 10.01.2020 (post Anuradha Bhasin (supra) judgment): 2G mobile internet to postpaid users to access whitelisted sites in Jammu, Samba, Kathua, Udhampur and Reasi.
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. 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. 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 or4G) on a trial basis over certain geographical areas and advise the Respondent No. 1 regarding the same, in terms of our earlier directions. 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 the paperbooks of the present petitions, to the aforesaid Special Committee.
Section197 of the Cr.P.C and section 170 of the Karnataka Police Act
Schedule 5 of the Constitution of India