A three judge bench of the Supreme Court starts hearing a batch of petitions seeking the restoration of 4G internet services in the valley as the current 2G service is proving to be an hindrance for education and business.
Senior Advocate Huzefa Ahmadi for Petitioner: Several areas schools are holding classes via zoom app and due to 2G, J&K students not getting access.
Ahmadi: On 16 march 2020, Section 144 was imposed after the outbreak of the COVID-19 Pandemic almost all over the UT of J&K. J&K govt declared Covid as pandemic on 17 March, 2020; Justice Ramana: Facts are not in dispute
Attorney General KK Venugopal: We are not disputing the facts. It is the issue of violation of fundamental right to education and that is what we are disputing.
Ahmadi: Look at the orders passed on March 26, April 3 and April 15, 2020. We have challenged these orders
Ahmadi: We have also challenged the order of April 27. In all these orders the internet speed has been restricted to 2G only. The 27 April order expires on May 11.
Ahmadi: In J&K, as on today there are 701 COVID cases and 8 deaths. When this petition was filed there were about 33 cases. Today it has escalated. We have made repeated Representation to the govt.
Ahmadi: The internet speed restriction has led to problems being faced by doctors who cannot access information about COVID treatment, which is extremely necessary. Almost 75 doctors have also made a representation to the J&K govt flagging the same concerns
Ahmadi: Right to access healthcare is inherent under Article 21. Such deprivation of fundamental rights has to be judged in the light of the fact that today you have a pandemic and you have restricted right of people to access a doctor and of children to access a school.
Ahmadi: This denial of Right to access healthcare through internet violates the rights under article 19 and also 21 because it has a bearing on right to health.
Ahmadi: Some basic online transactions stuck because online signatures cannot be done over 2G
J Ramana: We have seen the govt affidavit. It says issues are being taken care of.
Justice Gavai: All affidavits need not be minutely perused over video call. We have seen all
Justice Ramana: There is no dispute about that 4G is very fast compared to 2G.
Ahmadi: The govt affidavit has denied it. They say there are a lot of activities which you can do on 2G. They say you can download youtube video.
Ahmadi: There are 1 lakh 32 thousand broadband landline connections, but more than 1 crore phone/internet connections. Total number of broadband connections in J&K account for less than 1% of the total internet connections. Thus, hardly 1% of all users have broadband connection
Ahmadi: The government argument that on a broadband connection you can access 4G is virtually useless in J&K
If in someone's house you have a connection then because of social distancing, someone else cannot come to the house and use the broadband connection
Justice Gavai: Numbers are not in dispute. But it's a legal question of balance. There are health concerns and security concerns. Govt is raising security concerns.
Ahmadi: When there is no lockdown restrictions, and govt restricts internet, it's an Article 19 issue. But during a lockdown when the government imposes lockdown due to a pandemic, the health issues also have to be balanced. Then it's an Article 21 issue.
Justice Subhash Reddy: So you're saying we should ignore security concerns?
Ahmadi: We are not talking of normal times today. We have to keep in mind the health concerns in a pandemic. In normal times the government can raise concerns of security as it impacts freedom.
Ahmadi: The govt affidavit says audio and video streaming mediums are being used but YouTube, Zoom etc can't be used in 2G. Even the Aarogya Setu app of the govt is extremely difficult to download or use on a 2G network.
Ahmadi: It's for the government to explain how the restriction is justified. Court cannot mechanically defer to the government's statement that the restriction is Justified.
Video conferencing link to Senior Advocate Ahmadi gets snapped. Connection resumes.
Justice Gavai: With this kind of interruptions in Video-conferencing, it's not possible to hear every argument in detail. Tell us what we can do at this time?
Justice Ramana: The government is showing that there has been a surge in terrorist activities.
Ahmadi: According to the numbers the terrorist activities were more in the 1990s when there was no internet at all
Ahmadi: Has there been any study to show terrorist activities have increased due to
Ahmadi: Govt has not been able to show any direct nexus between surge in terrorist activities with that of
Senior Advocate Salman Khurshid: Private schools are under government directions to provide education via Video-conferencing. We have obligation under Right to education to provide education.
Khurshid: Affidavit filed by the J&K govt says there has been a weekly review of the situation but none of the review orders or info is available in public. We stand by the govt regarding security but data should be available to see whether there is any impact of 4G on security
Advocate Soayib Qureshi begins arguments: Since the Anuradha Bhasin judgment in January there have been two kinds of orders. One is of restrictions on speed, the other is internet shut down.
Qureshi: Govt orders have repeatedly said anti national inflammatory information is being disseminated through social media platforms. Why can't there be restriction on social media? Why restrict internet access?
AG KK Venugopal: The orders that have been passed specifically state that restrictions in internet speed is required for national security.
AG Venugopal: This is about Protection of the lives of the entirety of the population of J&K. Yesterday there were some tragic events. These men could easily take videos of the troop movements because they were trusted. The enemy could know the troop movements if they had 4G
AG Venugopal: Such pleas have to be examined against larger public interest of national security. National security is paramount. Those tasked with Protecting national security must be the sole judges of this.
Justice Ramana: The purpose of the review committee is to see whether there is need for review. They have to decide on basis of material present. You have passed orders every 7 days. Where is the review commitee order? Order must indicate that review committee has considered it.
Justice Ramana: Are you saying internet restriction orders have been passed after review?
SG Tushar Mehta: These orders have been reviewed by the committee. After the abrogation of article 370 the situation has completely eroded.
SG Mehta: We started with a complete lockdown, then opened movement, then landlines, then 2G internet. Decisions being made according to officials at the ground level. Orders are not mechanical.
Justice Ramana: How are you taking care of the COVID situation with reference to these restrictions?
SG Mehta: Health services are working.
Supreme Court: Petitioner is saying that right to healthcare has been infringed
SG Tushar Mehta: There are other areas in the country where there is either no internet or only 2G is available. There is no information that someone has died of COVID-19 because they didn't have internet access
SG Mehta: Landlines are traceable. Thus broadband cannot be misused for any anti national activities. Mobile phones are easily used. They can be thrown away.
Supreme Court: For how long will these restrictions last?
SG Mehta: That will be decided by the review committee.
Senior Advocate Huzefa Ahmadi begins rebuttal: The Anuradha Bhasin judgment is not being followed. The verdict had said that there must be periodic review and orders must be reviewed within 1 week. There are no orders of the review committee which have been placed on record.
Ahmadi lays down how slow internet is a handicap for students: It's a matter of elementary knowledge that 2G can't be used for video.
Justice Ramana: 2G takes more time
Ahmadi: It makes no sense for a student trying to study. Secondary student population of at a greater handicap. They are competing with students of the rest of india and cannot access the education and classes the rest of the country is getting.
The three judge bench of Supreme Court reserves order in this case. Says all issues will be considered.
Ahmadi: Atleast on a trial basis, let the faster internet speed work. Entire Jammu is peaceful. Large parts of Kashmir are peaceful.
Salman Khurshid: There is still the option to block internet sites which are problematic. The center blocks pornographic sites. Why not block the sites which can be misused?