Access to internet not a fundamental right, Jammu and Kashmir administration tells Supreme Court

Right to access the internet is not a fundamental right and the degree of access for exercising free speech or for carrying on any trade or business can be curtailed, the administration of Jammu and Kashmir said in the Supreme Court on Wednesday.

The submission by the newly created Union territory came in an affidavit it filed in a case seeking restoration of 4G mobile internet services in Jammu & Kashmir.

High-speed Internet as been suspended even after the easing of restrictions, including a communication blockades, imposed after erstwhile state was divested of its special status with the revocation of Article 370 of the constitution in August last year. Simultaneously in August, the Centre pushed through provisions reorganising the state into two UTs -- J&K and Ladakh --- with effect from October 31. .

Protection of the sovereignty and integrity of India and ensuring security of the country are sound grounds to reduce the speed of the internet, the affidavit said.

“The 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 stated.

The centre’s affidavit was in response to a plea by a not-for-profit organisation, Foundation for Media Professionals, which said the lack of high-speed mobile internet was causing difficulties during the Covid-19 outbreak with patients, doctors, and the public in general remaining in the dark about the latest information, guidelines, advisories and restrictions related to the pandemic.

The petitioner challenged the order issued by the J&K administration on March 26 restricting the internet speed in mobile data to 2G and prayed that 4G internet services be restored in the Union territory.

“Various public health practitioners, medical professionals, and doctors have repeatedly expressed their concern about wasting precious time trying to download the latest studies, protocols, manuals and advisories on treatment and management of Covid-19 . In some cases, doctors are not able to access these resources at all, due to the internet speed being too slow to download heavy files”, the petition stated.

The J&K administration claimed that the submission was misconceived because most of the information relating to Covid-19 can be accessed through fixed line high-speed internet which is available in the Union territory without any speed restrictions.

“The information regarding Covid-19 is also available on various social media platforms which can be easily accessed on low speed 2G internet. Various Government websites like website of WHO, Ministry of Health and Family Welfare, etc. associated with timely information flow in the form of awareness/advisories/orders can also be easily accessed at Low Speed internet”, the affidavit said.

The Supreme Court in a judgment passed on January 10, had held that access to information and the freedom of trade and commerce via the internet are fundamental rights under the Constitution of India. It had, therefore, ordered the central government and J&K administration to periodically review the orders restricting Internet services in J&K

J&K, in its affidavit, told the court that after the January 10 judgment by the apex court, various orders were passed by the administration gradually lifting restrictions in J&K. Mobile phone services - initially post-paid and thereafter pre-paid – were restored and restrictions on internet access were progressively lifted.

The affidavit said a decision as to whether controlled access to the internet is still warranted depends on an assessment of the ground situation.

“..post August 2019 constitutional developments, Pakistan handlers, either directly or indirectly, have increased activity on Social media intending to and aiming at disturbance of peace in the region , inciting violence and abetting terror activities”, the document claimed.

Increase in internet speed, the centre submitted, will lead to swift uploading and posting of provocative videos and other heavy data files.

“High speed internet services (4G) decrease the time of circulation of various photographs, videos, propaganda audios and hence enable the associated content to go viral, with the reaction time of law enforcement agencies to such situations decreasing”, the affidavit said.