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The State today justified the restrictions as having been placed to curb possible surges in terrorism. The petitioners asserted that the lack of 4G internet has hindered educational and health rights during the lockdown.
A three judge bench of the Supreme Court led by Justice NV Ramana today reserved orders on a batch of petitions seeking restoration of 4G internet in Jammu and Kashmir as "Right to education" and "Right to healthcare" was being hampered due to the slow internet speeds.
Justices NV Ramana, Subhash Reddy and BR Gavai stated that orders will be passed in the case, where the J&K government today argued that restoration of 4G compared to the present 2G will lead to a surge in terrorist activities.
On April 30, Jammu and Kashmir administration had told Supreme Court that right to internet access is not a fundamental right and the state can curtail the freedom of speech and right to trade through internet.
The administration opposed the restoration of 4G services in the union territory, saying a very reasonable quantum of restrictions have been imposed by reducing the speed of internet to protect the sovereignty, integrity and security of the country.
However, Senior Advocate Huzefa Ahmadi arguing for one of the petitioners, Foundation for Media Professionals asserted today that the 2G internet speed was infringing upon the Right to Healthcare of citizens and was leaving doctors without access to technology needed to combat COVID-19.
"In J&K, as on today there are 701 COVID-19 cases and 8 deaths. When this petition was filed there were about 33 cases. Today it has escalated. 4G 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," argued Ahmadi.
Ahmadi also highlighted that the right to access healthcare is inherent under Article 21 and that the internet speed restriction was leading to "deprivation of fundamental rights" which needed to be "judged in the light of the pandemic."
Ahmadi, while substantiating his submissions on how slow the connection is, stated that "even Arogya Setu app cannot be downloaded and operated by people" in the valley.
However, when the bench posed this question to Solicitor General Tushar Mehta, appearing for the J&K government, he stated that "health services were working."
"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," said SG Mehta.
The next contention raised was regarding the impact slow internet was having on education.
Senior Advocate Ahmadi contended that students from J&K have to compete with students from across the country but cannot attend classes like them and thus classes by "video conferencing was useless for them."
Senior Advocate Salman Khurshid appearing for one of the petitioners, stated that private schools are under government directions to provide education via Video-conferencing. "We have an obligation under Right to education to provide education," said Khurshid.
However, the J&K government argued that the primary concern on which the internet speed restrictions were hinged was security.
Attorney General KK Venugopal submitted that a faster internet speed like that of 4G would give the enemy information even about the "troop movements."
"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," argued AG Venugopal.
Adding to this, AG stated that the issue of internet speed restoration should be at the hands of the ones who are tasked with "protecting national security."
However, Senior Advocate Huzefa Ahmadi attacked the government's argument of linking 4G internet speed with rise in terrorist activities by stating that there was no "study to suggest" such a possible relation.
"Most of the terrorist activities happened in J&K during the 1990s when there was no internet," argued Ahmadi.
Ahmadi also maintained that all the government orders imposing the internet speed restriction in the valley was violative of the Anuradha Bhasin judgment of January this year as none of the orders imposing internet speed restriction was placed before a review committee and that none of the review committee reports were made public.
At this juncture, the Supreme Court sought to know from SG Mehta if such orders were perused by the committee at all.
"The purpose of the review committee is to see whether there is a need for review. They have to decide on the basis of material present. You have passed orders every 7 days. Where is the review committee order? Order must indicate that the review committee has considered it," Justice Ramana had enquired.
To this SG Mehta stated that "orders were not mechanical and that had been passed taking the ground situation into consideration," as the situation had "eroded" post abrogation of Article 370.
Justice Gavai, however, remarked while hearing submissions by Ahmadi that "numbers were not in dispute but that it was a legal question of balance."
"There are health concerns and security concerns. Government is raising security concerns," said Justice Gavai.
However as per Ahmadi, lockdown in the wake of COVID-19 had altered dynamics.
"When there are no lockdown restrictions, and government restricts the 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," said Ahmadi.
Advocate Soayib Qureshi appearing for one of the petitioners stated that if security threat is an issue, then social media sites can be restricted.
"Government orders have repeatedly said anti national inflammatory information is being disseminated through social media platforms. Why can't there be a restriction on social media? Why restrict internet access?" argued Qureshi.
After hearing the submissions, the Court today reserved orders in the matter, while assuring that all the issues raised would be considered in its judgment.
Read Written Submissions by the Foundation for Media Professionals: