A Division Bench of the Supreme Court of India on Monday issued notice on a writ petition seeking uninterrupted and continuous 4G mobile internet services in the Union Territory of Jammu and Kashmir. The petitioner is a non-profit society called Private Schools Association J&K that represents “the interests of over 3800 member schools” in the Union Territory, according to the petition. The Home Department of Jammu and Kashmir has been arraigned on the ground of “grave and ongoing violation of the fundamental right to education of students” as the Department has allegedly continued “slowing down mobile internet speed to 2G”. Against the backdrop of the outbreak of the pandemic, which necessitated a shift to online schooling, these internet crackdowns have resulted in a “digital apartheid in access to education”, the petitioners have claimed.
Advocate Shadan Farasat, appearing on behalf of the petitioner-society, informed the Bench composed of Justices B.R. Gavai and B.V. Nagarathna, of the “ground reality” of the Union Territory. In doing so, he invoked the law laid down in Anuradha Bhasin v. Union of India [(2020) 3 SCC 637], where the apex court had ruled that an indefinite suspension of internet services would be illegal and that orders for internet shutdown must satisfy the tests of necessity and proportionality. Farasat said –
“There have been orders which are regularly being passed by the Union Territory which are in violation of the Anuradha Bhasin principles. Meanwhile, a lot of teaching that is happening, even today, is a mix of online and physical classes. That is the reality of Jammu and Kashmir.”
Justice Gavai pointed out that a Special Committee had been constituted by an order of the Supreme Court in Foundation for Media Professionals v. U.T. of Jammu and Kashmir [2020 5 SCC OnLine 746], which was directed to look into “the prevailing circumstances” and immediately determine “the necessity of the continuation of the restrictions”. He said.
“But we had directed some committee to be constituted to examine the necessity of continuous internet services.”
However, Farasat claimed that the orders being issued by the Department were in violation of the earlier directions of the Supreme Court –
“That is not happening on the ground. The orders that are being passed right now are quite problematic. Whereas, in Anuradha Bhasin, the Court had given a mandate of a reasoned order.”
Farasat proceeded to take the Court through a recent order issued by the Department on October 3, 2022 –
“The reasoning is so broad. The order refers to ‘anti-national elements’, ‘miscreants’…It’s the most general reasoning. What is the specific ground on which mobile data services are being suspended? How will any court judicially review this?”
On being asked about the petitioner’s “specific grievance”, Farasat conceded that the writ to the extent of asking for a restoration of 4G internet services had become infructuous inasmuch as in February 2021, after 18 months of a shutdown, high-speed internet was officially restored in the Union Territory. However, crackdowns on the internet were frequent, jeopardising the education of children in Jammu and Kashmir and violating Articles 14, 19, 21, and 21A, it was claimed. LiveLaw