Supreme Court, J&K
Supreme Court, J&K

Right to access Internet is not a Fundamental Right, State can curb Freedom of Speech and Right to Trade through Internet: J&K Govt tells SC

Inter alia, the government has justified its move citing indications of cross-border terrorist threats, as gauged from social media discourse, and apprehensions of mobile internet misuse by anti-national elements.

Debayan Roy

After the Supreme Court asked the Jammu and Kashmir government to explain why the internet speed has been restricted to 2G in the valley, the government has replied that the “Right to access internet is not a fundamental right” and that the “Right to carry on trade and profession through internet can be curtailed.”

The reply filed by the Principal Secretary to the Government, Home Department, of the Union Territory of J&K in a batch of petitions challenging the J&K Govt order dated March 26 where the internet speed was restricted to only 2G. The lead petitioner in the matter is the Foundation for Media Professionals.

The government has informed the top Court that not only is the Right to internet not a fundamental right, but that the freedom of speech and expression and the freedom to carry on any trade and profession through the internet can be curtailed.

"Right to access the internet is not a fundamental right and thus the type and breadth of access for exercising the right to freedom of speech and expression under Article 19(1)(a) and/or to carry on any trade or business under Article 19(1)(g) of the Constitution of India (CoI) through the medium of internet can be curtailed. It is submitted that the sovereignty and integrity of India, the security of the State, public order or incitement to an offence, would certainly warrant curtailing the freedom of speech and expression, under Article 19(2)."

reads the J&K Government reply.

Similarly, the government has added that the “right to carry on any trade or business can be restricted in the interest of the general public under Article 19(6) of our Constitution.”

These rights under Article 19(1) (a) and (g) cannot be said to be curtailed by reduction in the speed of the internet, as has been alleged by the Petitioner in the Petition/Application under reply,” says the reply.

The PIL filed by the Foundation for Media Professionals through Advocate Shadan Farasat and being argued by Senior Advocate Huzefa Ahmadi had challenged the J&K government order of 26 March, restricting the internet speed to 2G in the Union territory.

The plea was moved on the grounds that such an order violates the right to equality before law, the freedom of speech and expression, the right to life and liberty, and the right of children to free and compulsory education, granted under Articles 14, 19, 21, and 21A of the Constitution.

In another plea, an association of more than 2,200 schools across Jammu and Kashmir, have dchallenged the government order as being violative of the fundamental right to education, especially since the lockdown for containing COVID-19 has led to home-bound virtual classes.

The plea filed by the 'Private Schools Association J&K', through advocates Soayib Qureshi and Charu Ambwani stated that the “internet” is now a “medium of imparting education,” especially after the nationwide COVID-19 lockdown was announced by Prime Minister Narendra Modi.

The J&K Government has stated in its reply that “current discourse of social media” suggests that “Pakistan is aiming to incite violence amongst college and University students” and that an increase in internet speed will lead to the “swift uploading and posting of provocative videos and other heavy data files.”

"Many hash-tags are being used by Pakistani handles to glorify Pakistan Army and terror outfits/terrorists and portray them as “fighters” for Kashmir’s “struggle”. Shadow handles, believed to have been “inspired” by/or at the behest of Pakistan Army try to allure people from Kashmir and living outside the country, to organize violent protests and rallies at their respective places and also participate in social media campaigns to further their antiIndia propaganda."

says the J&K Government in its reply.

One of the other reasons stated for the restriction in the internet speed is “misuse of data services, applications like WhatsApp and Facebook for mobilizing crowds by anti-national elements”, which the government believes has the potential to cause large scale violence, disturb public order and “indeed threaten the security of the country.

To buttress this stance, the reply also makes a mention of few examples citing recent incidents where the lockdown was violated in the valley, arguing that how more such instances could occur if the internet restrictions are relaxed.

"Recently around 500 villagers gathered to attend funeral of a terrorist a few days back, defying the lock-down [which was imposed pan India], throwing social-distancing norms to the wind, circulation of photographs of terrorists of proscribed / prohibited terrorist organizations, on social media networking sites to provoke and mislead the public in general and the youth in particular thus making it imperative to take pre-emptive measures including, restrictions on access to internet"

states the reply.

Further, the reply mentions that the COVID-19 pandemic has had “absolutely no impact whatsoever on chronic anti-national activities from across the border” and that “there has been a surge in terrorist incidents, post pandemic, most recent being on 05.04.2020, in Keran sector, Kupwara where 5 security personnel were martyred having successfully foiled infiltration bid along the Line of Control by 5 terrorists and killing them."

On a positive note the reply mentions that Fixed-line Internet connectivity with Mac-binding, is available without any speed related restriction.

For any activity dependent on heavy network usage, the broadband and fiber internet connectivity is available throughout the UT of J&K. It is noteworthy that access to social media has been allowed and the white listing of the URLs has been done away with,” the J&K Government reply reads.

Read the Reply:

J&K Govt Reply 2G Restriction-compressed.pdf
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