Delving into the Concept of Judicial Deference- Against the backdrop of Kashmir 4G rulingJuly 28, 2020
In Conversation with Mr. Akash Gupta – Arbitration amidst COVID-19, Challenges to virtual Arbitration and Future of Institutional ArbitrationJuly 29, 2020
India has earned the unwanted number one rank among the democracies in the world in the most number of internet shutdowns. In 2019, there were 77 such cases, with the Kashmir ban being the longest ever in the history of democracies. The internet shutdown was challenged in the Supreme Court [“SC”], in Anuradha Bhasin case, which ordered that internet services cannot be suspended indefinitely. Following the order of the Supreme Court, though the government ordered to restore internet in J&K, it only allowed 2G mobile internet access.
The problem arises as the connectivity of 2G is very slow, it disables the citizens from accessing any website in a hassle-free manner. The 2G problem was raised in front of the SC in a public interest ligation by the Foundation for Media Professionals, which requested restoration of 4G services. The SC reserved to pass an order but directed the formation of an executive committee to look into the issue.
INTERNET: NEED OF THE HOUR
The Internet has been recognized as a means and as a catalyst towards safeguarding and promoting human rights by the UN Declaration on Human Rights. Article 19 of the UN Declaration of human rights includes the right to internet access. The Kerala high has in Faheema Shirin case held it to be a fundamental right in itself, stating that Article 21 has to be read in compliance with international law, if it does not stand contrary to the municipal law of the country, in PUCL v. UOI.
Right to health
Right to health has been recognized as a fundamental right under Article 21, in the landmark case, Bandhua Mukti Morcha v. UOI and the government has a positive obligation to take steps to provide healthcare facilities, for holistic physical, mental as well as social well-being of an individual which was upheld in CESC Ltd v. Subhash Chandra Bose.
Dissemination of information through the internet makes certain that people’s right to information is preserved by educating about the seriousness of the problem, ensuring that they are not misguided by locally spread rumours, and informing them about the prescribed sanitation procedures, as well as the efforts that are being employed to mitigate and contain the spread of the virus.
Coronavirus breakout has affected people’s physical as well as health, and as other facilities are not available, internet facilities must be enhanced, but in Kashmir, even normal internet access has not been restored. The various instructions that are being sent to the medical professionals have become difficult to access, as downloading them is taking an extremely long time. People are not even able to avail the benefits of the government launched the Aarogya Setu app, due to lack of proper internet facilities. Tele-medicines have become a far cry for the residents as video-conferencing requires much higher bandwidth than what is provided by 2G services. Right to health can only be efficiently exercised if internet access is restored and people are able to access the necessary information and facilities.
Right to Livelihood
The meaning of Right to Life under Article 21 has been ever-expanding as the courts keep on widening the scope of this right. In Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nandkarni, the Right to Life was held to include within its meaning the Right to Livelihood which was further upheld in Olga Tellis v. Bombay Municipal Corporation. Article 39A of the Constitution states that the govt must ensure that every citizen has proper means of livelihood.
With the ban, some professions have been out of existence since August 2019, thus violating the Right to Livelihood of these people. Some of the people whose job are being affected by the ban on the internet are YouTubers, Instagram influencers, software engineers. People working in IT companies, journalists for online websites are having problems to carry out their work.
In the wake of the outbreak of Covid-19 Virus and pan India lockdown, companies and businesses are shifting to online modes of operation to keep their business up and running. For this, the employees are expected to work from home by logging into a portal created by their company. Since the lockdown has put a partial halt on the cash flow in the economy, companies and businesses are facing a cash crunch. This has forced them to take some harsh measures of letting go of some of their employees. In such a situation, the people who are residents of Kashmir but are employed elsewhere are not able to work due to the internet restraint imposed upon them. This might become a reason for them to be rendered jobless.
Right to Education
In the modern-day society, there cannot be just enough emphasis put on the importance of education for a good future of any child. Right to Education contained in Article 21A enjoys the same legal status as the Right to Life. The Right to Education (RTE) Act passed in August 2009 has made free and compulsory education a fundamental right available to each and every child falling in the age group of 6-14 years, wherein the word compulsory puts an obligation upon the government to provide free elementary education to each child and to ensure that children mandatorily attend and complete their education, even during a pandemic.
In view of the lockdown, the UGC has issued guidelines and has directed every institute to use video-conferencing platforms to create a virtual-classrooms and make reading material available online, but the same cannot be undertaken in Kashmir. Some universities such as NALSAR, have also provided its students with internet packs and created a digital library, but the same are pointless in Kashmir.
Finance minister Nirmala Sitharaman has announced the e-vidya program through which 100 universities across India have been granted permission to start courses through a feasible online mode. This is expected to benefit 25 crore school going and 3.7 crore students in higher education. All this while with no internet the students in Kashmir will still remain in dark about how to carry on with their education.
Most of the competitive exams require students to prepare by taking mock exams online, reading e-materials. This compromises the talents of students who are Kashmiri residents as most of the learning and mock tests for such exams require logging in to a portal from where you can access the material. Since equality is the birthright of every person, the aspirants in other states definitely enjoy a competitive edge over them who are in a way being treated unequally.
Where most of the students are seeing this lockdown as an opportunity for extracurricular learning such as online certificate courses, engaging in other leisure activities, the children in Kashmir are unable to even complete their academic commitments.
CAUSE FOR CONCERN
The SC held in Maneka Gandhi v. UOI that under Article 21 the right to life can be taken away only in accordance with the procedure established by the law and in a fair, reasonable and just manner. The actions must be reasonable and there must be a nexus between them and the purpose that is being sought to be achieved. Any action that fails to balance the objective of restriction and effect on the Rights, can be said to lack reasonability and proportionality.
The internet restriction was imposed in August due to the growing unrest in the UT but since then times have changed immensely due to the wake of the pandemic, the fundamental rights of the citizens to health, livelihood and education, must take centre stage. Due to the lockdown, the internet has become the only medium through which these rights can be practically exercised by the people.
Though 2G mobile internet access and broadband connectivity have been allowed in the state, the bandwidth is not sufficient to fulfil even the basic needs of the people. Therefore, there is no balance between the impact of the restriction on the rights of the residents of Kashmir and the initial objective of imposing it and hence, the restriction cannot be said to be reasonable and proportionate.
Also, the judiciary has the responsibility of reviewing executive actions to ensure that the rights of the people aren’t unreasonably restricted. Separation of power being a crucial element of democracy, the judiciary should not leave the power to review the executive actions, which have been challenged by the people as infringing upon their rights, to the executive itself as it might lead to an arbitrary outcome, which is devoid of fairness and justness.
The fear and panic that has struck the minds of the people can only be imagined, especially due to the uncertainty that this pandemic has brought with it and resultantly, the internet has become the only means through which people are able to exercise right to life in certain aspects.
The current condition has made it further difficult for the government to satisfy the test of proportionality. Even if we assume that the test was satisfied in the first place, when the ban was imposed, the importance of internet has increased manifold in the wake of the pandemic which the country faces and a revaluation of the pros and cons of the ban need to be undertaken in the fresh backdrop of the current scenario.
The Internet has been playing a major role in ensuring that people remain at home and follow the social distancing guidelines. It has allowed people to pick up a hobby and keep themselves engaged and has provided a platform to sustain themselves. Since people in Kashmir are unable to work, nor do they have internet facility, it becomes difficult to impose the lockdown strictly. Whereas students from other states have switched to online modes of learning, the initiative of Kashmir Government to continue schooling through All India Radio has various fallacies, lack of connection in remote areas being the major one. The doctor-to-people ratio in Kashmir (1 for 3900) is already alarmingly below the norms mandated by the World Health Organisation (WHO). This multiplies the importance of Arogya Setu app launched by the government to increase awareness, but let alone using, people are unable, even to download the app.
As the matter currently stands the review committee has not yet been formulated and the petitioners have sought the help of the SC again. The SC could at the very least issue strict instructions to the government to form the review committee at the earliest. But there is a difficulty with the current composition of the committee as some of the members of the committee ordered to be formulated are the officials who have imposed the restriction and hence, there is need for the SC to review its directions. The best-case scenario would be the SC adjudicating the matter itself. An alternative and fresh committee of non-biased members, who would look into the matter without any prejudice, could also be formulated and a final decision should be taken, hopefully taking into account the rights which have been endangered during such difficult times.
Internet access is paramount, especially in times of an emergency, in ensuring that people’s rights are preserved and safeguarded, and therefore lifting the internet shutdown would be a positive step towards ensuring that the Kashmiri residents aren’t stripped off their quintessential rights and that the government is able to fulfil its obligations.
ABOUT THE AUTHOR(S)
Rashmi John is a 2nd-year law student at National Law University, Jodhpur.
Samkit Jain is a 2nd-year law student at National Law University, Jodhpur.
In Content Picture Credit: Kashmir Observer