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(Snehil Ajmera and Garvish Jain are third year students from Maharashtra National Law University, Nagpur)
Due to the outbreak of the pandemic COVID-19, the world has come to an unexpected halt. As the researchers and scientists failed to develop any vaccine for this health catastrophe until today, ‘social distancing’ is considered the best possible way to contain the spread of the disease. Technology evolved as a panacea in this tough time of COVID-19 when almost all-sectors like the judiciary, education, health, and many more are functioning with the help of internet. Access to the Internet seems to be an ordinary thing in today’s era, but it does not seem so when it comes to Kashmir. Recently, the Supreme Court of India in Anuradha Bhasin v. Union of India[i] has recognized that the internet shutdown violates freedom of speech and expression under Article 19(1)(a) and freedom to trade and profession under Article 19(1)(g). Accordingly, only the 2G services of the Internet were restored in the Union Territory of J&K by the central government. At a time when the world is suffering from the mar of a treacherous virus, the benefits of 4G services are commendable. In the light of recent Supreme Court Judgment, this blog sheds light on violation of multiple Fundamental Rights. Restoring 4G Services and COVID-19 Recently, the Supreme Court in Foundation of Media Professionals v. Union Territory of J&K[ii] has given a judgment on the issue of restoration of 4G internet services during pandemic COVID-19 and addressed the critical issue of security of the nation and human rights. The court constituted a special committee for balancing the human rights of Kashmir’s citizens with the security of the nation. While it is necessary to check the cross-border terrorism for National security, it must also be kept in mind that this should not result in the violation of Fundamental Rights. The state has justified internet shutdown by claiming that it is curbing terrorism in the area but even after complete restrictions on the internet for six months, authorities have failed to stop insurgent activities in Kashmir. The gross violations of Fundamental Rights due to restricting internet services during COVID-19 are briefly discussed: · Right of Access to Health Services The Supreme Court in State of Punjab v. Mohinder Singh Chawla[iii] held that the right to health is integral to the right to life, and the government has a constitutional obligation to provide health facilities. Amid this pandemic, to practice social distancing and curb the spread of the virus, the Ministry of Health and Family Welfare has recognized the usage of telemedicine and came up with the Telemedicine Practice Guidelines, 2020[iv] which enabled the Registered Medical Practitioner to deliver health-care services by using information and communication technologies to promote social distancing and to reduce the number of patients coming to hospitals. But in Kashmir, due to the restriction of 4G services, it has become impossible for the natives to consult a doctor using video-conferencing or telemedicine. It is important to disseminate correct information about COVID-19 to keep growing anxieties in check and to enable ordinary citizens to make informed choices about their health. It is high time for the center to restore peace in the valley. · Right to Education Students in Kashmir face one hitch after another, firstly, on the event of the abrogation of Article 370, which resulted in complete lockdown in Union Territory for nearly six months and secondly due to the outbreak of COVID-19, both of which ultimately collapsed the education mechanism in the whole UT for about a year. It is true that the pandemic has severely hit the education system throughout the country. However, to salvage academic activities, while education institutes in the rest of the country are resorting to e-learning to impart education to students, Kashmir is lagging way behind on such measures. This is mainly due to the non-availability of high-speed Internet in the area. The right to education is guaranteed under Article 21A of the Constitution. Curtailing internet speed directly affects the students of Kashmir as they are unable to attend online classes, and students appearing for competitive exams are also unable to prepare. While UGC and MHRD have instructed[v] institutes to adopt online means to every possible extent to teach, Kashmir is still struggling for a stable network connection. Remote learning is the way to contain the spread of COVID-19 and also to stabilize the distorted education system, but the speed of the Internet acts as a barrier for Kashmiri students. This directly violates the students’ fundamental Right to Education. The author would submit that this act of restricting internet speed also violates the rights given under Article 14 of the students of Kashmir as there exists an unreasonable classification when the internet services for the students in Kashmir are differentiated from those for the rest of students outside Kashmir. · Access to Justice The words ‘Access to Justice’ immediately stir up in our mind the idea that every person who seeks justice must be provided with the requisite opportunity to approach the Court of Law. A constitutional bench of the Apex Court in Anita Kushwaha v. Pushap Sudan[vi] has held that access to justice is a Fundamental Right guaranteed to citizens under Article 14 and Article 21. During COVID-19, human life is clogged and has become stagnant, so have the courts. Many courts have started to function virtually, and they have succeeded to a great extent. During this pandemic, the apex court has realized the importance of the situation, and suomotu passed guidelines[vii] for the functioning of the court via video conferencing. In contrast, conditions in Kashmir are so deplorable that only 1-2 percent of residents have fixed-line internet connectivity, and it is unfeasible for crores of Kashmiris to approach court via video-conferencing because of the aforementioned restriction on 4G networks. Excluding Kashmiris from the benefits of 4G technology during this crisis is unreasonable, illegal, and unconstitutional. · Freedom of Trade India’s economy was in trouble already because of several factors, COVID-19 has added nails to the coffin. This pandemic has severely affected every sector, but the most affected one is trade. The Kashmir Chamber of Commerce and Industry’s head in an interview stated that due to internet shutdown following the abrogation of Article 370, the economy has crippled, and various businesses have suffered a loss of approximately USD 440 million in just three months.[viii] In this era, many trade activities depend only on the Internet. MHA, through its order[ix] issued under the Disaster Management Act, also advised ‘work from home’ as working places remain shut due to lockdown. However, this is not possible in the case of Kashmir due to restrictions in network speed. The guidelines[x] issued by MHA expressly stated internet services as ‘essential’ and should remain accessible. In Anuradha Bhasin, the Supreme Court has recognized the freedom of occupation, trade, and commerce through the Internet is protected under Article 19(1)(g) of the Constitution. Restricting internet speed deprives people of Kashmir to continue their trade through the Internet. Online meetings by corporates are proving worthwhile in India amid COVID-19, but on this aspect also, Kashmir is lagging due to the restrictions on internet speed. Thus, these restrictions are a clear case of violation of Article 19(1)(g) of the Constitution. How far such restriction is plausible? Democracy is a symbol of the balance between powers of the State and citizen’s rights. Fundamental Rights reflects the “Idea of India” bestowed by framers of our Constitution. Following the above prophecy of the Constitution, protecting physical boundaries in the name of National Security is not the sole duty of government, but it also extends to confer and protect fundamental rights. It is a senseless act to protect only the body but not the soul of the citizens. By restricting the internet services to 2G, the government of J&K justified that such restrictions are necessary for protecting the sovereignty, integrity and security of the nation.[xi] However, it is pertinent to mention, that even after such restrictions, Kashmir has witnessed an increased number of terrorist and insurgent activities. The restrictions are further unjustified as conversations between such terror groups can happen even on 2G connections, and they can even use satellite communication technologies. Recently, the Apex Court in KS Puttaswamy v. Union of India[xii]upheld the ‘principle of proportionality’. It stated that restrictions on Fundamental Rights by the State must be proportionately determined after checking the arbitrariness. But in Kashmir, such restrictions have failed in the ‘proportionality test’ as restriction of internet services in the whole Union Territory and not only in affected areas. If the aim is to stop activities that are threatening national security, the government has the option to restrict internet services only in the areas posing high-risks, which can be ascertained by Special Agencies. Conclusion India has become the ‘internet shutdown capital’ of the world and accounts for more than 65% of the total internet shutdowns. Recently Kashmir witnessed the longest internet shutdown in history, which was lifted with the intervention of the Apex Court. However, such lifting of the shutdown is for namesake only, the residents of Kashmir still can’t enjoy the benefits of 4G services during this deadly crisis of COVID-19. The Supreme Court in Media Professionals has recognized the need to balance human rights with the security of the nation, but it has not done this itself, rather it has delegated this exercise to the executive, whose own orders were questioned in court. Now, the fate of poor Kashmir residents depends on how the Special Committee will balance the human rights on the verge of the so-called security threat to the nation. In either of the ways, the lives of the innocent Kashmiris are to be sacrificed. [i] 2019 SCC OnLine SC 1725. [ii] 2020 SCC OnLine SC 453. [iii] (1997) 2 SCC 83. [iv] Ministry of Health and Family Welfare, Government of India, Telemedicine Practice Guidelines (Mar. 25, 2020), https://www.mohfw.gov.in/pdf/Telemedicine.pdf. [v] Special Correspondent, UGC issues advisory for new academic year, The Hindu (Apr. 29, 2020), https://www.thehindu.com/news/national/ugc-issues-advisory-new-academic-year/article31466533.ece. [vi] (2016) 8 SCC 509. [vii] In Re: Guidelines for Court functioning through video conferencing during Covid-19 Pandemic, Suo Motu Writ (Civil) No.5/2020,https://main.sci.gov.in/supremecourt/2020/10853/10853_2020_0_1_21588_Judgement_06-Apr-2020.pdf. [viii] Regina Mihindukulasurya, How Kashmir internet shutdown has hit Valley industries hard, The Print (Oct. 29, 2019) https://theprint.in/india/kashmir-internet-shutdown-hit-valley-industries-hard/312659/. [ix] Ministry of Home Affairs, Government of India, Order No. 40-3/2020-DM-I(A) (May 17, 2020),https://www.mha.gov.in/sites/default/files/MHAOrderextension_1752020.pdf. [x] Ministry of Home Affairs, Government of India, Consolidated Guidelines respect to Order No. 40-3/2020-DM I(A) (May 17, 2020),https://www.mha.gov.in/sites/default/files/PR_Consolidated%20Guideline%20of%20MHA_28032020%20%281%29_1.PDF. [xi] Home Department, Government of Jammu & Kashmir, Temporary suspension of Telecom Services- directions Order No. 21(TSTS) of 2020 dated (Mar. 26, 2020), http://jkhome.nic.in/orders.html. [xii] (2019) 1 SCC 1.
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