Internet access in Jammu and Kashmir isn’t about the ‘right to freedom’ — it’s about the ‘right to life’, according to lawyers

• Internet access in Jammu and Kashmir continues to be throttled at 2G speeds despite demands of better speeds in order to access education and healthcare services during the coronavirus lockdown.
  
• Lawyers told Business Insider that the issue of internet access in India’s troubled state is not about the ‘right to freedom’, but about the ‘right to life’.
  
• The argument that 4G speeds in Jammu and Kashmir would facilitate terrorism implies that access to faster internet can’t be restored until terrorism is completely eradicated.
  

Access to 4G internet in Jammu and Kashmir was shot down by the Supreme Court on Monday. Instead, they passed on the responsibility of restoring fast-speed internet access onto a committee that will determine the balance between ‘national security’ and ‘human rights’.


Jammu and Kashmir had the face the longest internet shutdown in India’s history lasting 7 months — between 4 August 2019 to 4 March 2020 — after the Article 370 of the Constitution was abrogated by the Indian government. Internet services have since been restored in a phased manner, however only at 2G speeds.

“While the Supreme Court’s judgment appears to be based on the principle that no ‘fundamental freedom’ is absolute, this is a case of ‘right to life’,” Padmaja Kaul, a partner at IndusLaw, told Business Insider.


“It is unlikely that we have seen the last of this legal tussle and with each passing day, it seems more imperative that the Supreme Court will need to step in and play a greater role in safeguarding the fundamental rights of its citizens,” said Kaul.

The coronavirus pandemic is only making things worse
The petitioners argued that 2G internet services aren’t enough to fulfil the requirements that have now come up due to the coronavirus lockdown. Essential services — like education and medical consultation — now have to be conducted online, and slow internet speeds are subpar to meet those demands.


“The issue, essentially, boils down to whether the denial of access to the most efficient, convenient and potentially cheap mode of accessing healthcare services or education — that is through the use of 4G internet — is violative of the constitution. This, during a pandemic, must be a resounding yes,” Kaul explained.

The counter-argument presented was that there is no report of anyone dying of COVID-19 due to internet restrictions, which according to Kaul, is akin to an ostrich hiding its head under the ground. “The Supreme Court, in innumerable decisions, has held that the right to health is a part of the right to life and that there is a constitutional duty on the State to ensure timely healthcare services,” she said.


Terrorism can’t be the justification to curtail access to internet
The official narrative in court pushed on the fact that access to faster internet speeds could be the means to facilitate terrorism. Petitioners argued that there was “no rational relation” between the two. Senior Advocate Huzefa Ahmadi even pointed out that in most cases of terrorism in the state, they were conducted in areas where there was no internet access, to begin with.

“The court has refused to take a view if faster internet can be restored in J&K in view of pandemic and held on to its view that the national security considerations prevail over other fundamental rights in view of the security circumstances of J&K,” said Siddharth Mahajan, a partner at Athena Legal.


Data from the South Asia Terrorism Portal shows that the incidence of terrorism was much higher before 2006 when the internet was slower and, even non-existent, in certain areas. “The logical extension of the government’s stand of curtailing 4G while terrorism is prevalent may lead to the absurd result that J&K may never have access to 4G until and unless terrorism is completely eradicated from the valley,” added Kaul.

The question of fundamental rights
The Freedom on the Net report highlights that India is the second worst violator of internet user rights calling access to internet only ‘partly free’ in the country. “The nature of the fundamental rights in our Constitution is very interesting. Most rights — including the right to life and the freedom of speech, expression, etc. — are couched in negative terminology. That is, the state cannot deprive persons of such rights unless there are constitutionally permitted exceptions,” said Kaul.

The opposition in court argued that there are aren’t any restriction on fixed-line connections, so eduction and healthcare services should not be hampered. However, most people in India access the internet using mobile phone — not laptops — which is cheaper.


Denying access to the fast-speed internet in Jammu and Kashmir is ironic because the court itself has faced connectivity issues, even though it operates on fixed-line broadband. The internet restrictions in the state have been enacted under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. “The said rules allow the government to regulate the temporary suspension of telecom services due to public emergency or public safety,” Kaul explained.

However, the provision is meant to be for “temporary suspension” — not nearly a year. “The issue that needs to be highlighted is the proportionality in restricting access for such a prolonged period,” said Kaul.

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