4G in n J&K: SC declines prayers for 4G, constitutes committee to look into the issue

On 11 May 2020, Supreme Court of India refused the prayers to restore 4G internet services in 4G.

The court declined the prayer for restoration of 4G internet services in the Union Territory. It passed directions for constitution of a “special committee”. The Court ordered:

The Special Committee is directed to examine the contentions of, and the material placed herein by, the Petitioners as well as the Respondents. The aforesaid Committee must also examine the appropriateness of the alternatives suggested by the Petitioners, regarding limiting the restrictions to those areas where it is necessary and the allowing of faster internet (3G or 4G) on a trial basis over certain geographical areas and advise the Respondent No. 1 regarding the same, in terms of our earlier directions.

This committee will comprise the following:

• The Secretary, Ministry of Home Affairs (Home Secretary), Government of India.
• The Secretary, Department of Communications, Ministry of Communications, Government of India.
• The Chief Secretary, Union Territory of Jammu and Kashmir

SC disposed of the petitions observing:

The writ petitions are disposed of in the afore­stated terms. Pending applications, if any, shall also stand disposed of. The Registry is directed to communicate this order, along with a copy of the paperbooks of the present petitions, to the aforesaid Special Committee.

Observations

The learned Attorney General preliminarily contended that Courts should not step into issues of national security which are best left to those in charge of policy making [refer to Zamora, (1916) 2 AC 77 (PC)]. Further, the learned Attorney General relying on some judicial pronouncements submitted that the claims of fundamental rights have to be examined against the larger public interest of protecting the security of the State, wherein, while balancing the aforesaid conflicting rights, the security of the nation should triumph against the fundamental rights of the citizens. Moreover, in the prevailing circumstances wherein there is continuing insurgency in the region, the spreading of fake news to incite violence, etc., it would not be possible to provide full internet services to the region.

. At the outset, we have already laid down that the fundamental rights of citizens need to be balanced with national security concerns, when the situation so demands. This Court is cognizant of the importance of these matters for the national security concerns, and takes the same with utmost seriousness to ensure that citizens enjoy life and liberty to the greatest possible extent. National security concerns and human rights must be reasonably and defensibly adjusted with one another, in line with the constitutional principles. There is no doubt that the present situation calls for a delicate balancing, looking to the peculiar circumstances prevailing in the Union Territory of Jammu and Kashmir.

While it might be desirable and convenient to have better internet in the present circumstances, wherein there is a worldwide pandemic and a national lockdown. However, the fact that outside forces are trying to infiltrate the borders and destabilize the integrity of the nation, as well as cause incidents resulting in the death of innocent citizens and security forces every day cannot be ignored.

One of the criteria for testing the proportionality of the orders is the territorial extent of the restrictions. In view of the observations made in Anuradha Bhasin (supra), for meaningful enforcement of the spirit of the judgment, inter alia, the authorities are required to pass orders with respect to only those areas, where there is absolute necessity of such restrictions to be imposed, after satisfying the directions passed earlier.

We, therefore, find it appropriate to constitute a Special Committee comprising of the following Secretaries at national, as well as State, level to look into the prevailing circumstances and immediately determine the necessity of the continuation of the restrictions in the Union Territory of Jammu and Kashmir:

a. The Secretary, Ministry of Home Affairs (Home Secretary), Government of India
b. The Secretary, Department of Communications, Ministry of Communications, Government of India.
c. The Chief Secretary, Union Territory of Jammu and Kashmir