The Supreme Court's order on denial of 4G internet services in J & K - An 'Order' without any decision?

On 11^th May, the Supreme Court delivered its order in the petition filed by the Foundation of Media Professionals – praying for the restoration of 4G internet services in Jammu & Kashmir (‘J & K’). The Court directed the constitution of a three-member Special Committee headed by the Union Home Secretary, to examine the contentions of the petitioners. In two earlier posts (see here and here) we have discussed how denial of 4G internet services hinders access to civil and socio-economic rights for the residents of J & K, along with the arguments made in this regard by the petitioners. In this post, we shall discuss the flaws in the Supreme Court order.

The Supreme Court order and its inherent flaws

Before scrutinizing some of the observations made by the Supreme Court, let us first refer to the operative part of the Supreme Court’s order. After taking note of the petitioner’s submissions on infringement of fundamental rights, and the State’s contentions with respect to safeguarding national security by countering militancy, the Court directed the constitution of a ‘Special Committee’ headed by the Union Home Secretary to examine the Petitioner’s contentions and the alternatives that they had suggested. Along with the Union Home Secretary, the Committee constituted shall also include the Chief Secretary of J & K and the Communications Secretary of the Central Government.

It is significant to note here that the Court did not ‘decide’ the outcome of the matter – and disposed off the petition by stating that the Special Committee that has been constituted will examine the merits of the alternatives proposed by the petitioners, and the contentions that they had made. As the Court did not give any other conclusive finding, all the other observations made in the 19-page order can be considered as obiter dicta. But, before discussing the flaws in the Supreme Court’s order, let us refer to two observations made by the Supreme Court.

In paragraph 17 and 18, the Supreme Court referred to the proportionality test it laid down in the Anuradha Bhasin judgment, and noted that internet speed should be restricted to 2G only in those areas where there is an absolute necessity of imposing such restrictions, with the goal of countering militancy and terrorism. It also noted the petitioner’s argument that at present, the restrictions on internet speed have been imposed in a blanket manner throughout J & K, and are not limited to only those areas which are affected by militancy. In paragraph 19, the Court held that in normal circumstances, the petitioner’s submissions would merit ‘full consideration’. But, according to the Court, the compelling circumstances of cross border terrorism cannot be ignored.

Through these observations, the Court is hinting at achieving a fair balance between fundamental rights and safeguarding national security, which is another legitimate State objective. This, as the Court itself notes, could have been achieved by applying the test of proportionality, and holding that the restrictions on internet speed must be enforced only in those areas that are affected by militancy. The Court could have accordingly asked the Solicitor General to submit a list of areas/districts which were considered to be affected, and could have quashed the internet speed restrictions in other areas such as Jammu.

Such balancing of fundamental rights with other legitimate state objectives such as national security is part of the Supreme Court’s function of judicial review under Article 32 of the Constitution. This function of judicial review was abdicated by the Court, as it disposed off the petition by merely asking a Special Committee headed by the Home Secretary to examine the alternatives suggested by the petitioners. Examining alternative measures in accordance with the proportionality test is the Supreme Court’s function, and cannot be delegated back to the Executive, which had imposed the restrictions in the first place.

It is also pertinent to note here that the Court has not directed the Special Committee to report back to it after examining the feasibility of the petitioner’s contentions, and has merely directed it to ‘advise’ the J & K Administration on this issue. This is a redundant exercise for one simple reason. After imposing President’s Rule in J & K, it is the Union Home Ministry which is administering J & K, along with the Lieutenant Governor, who heads the Union Territory Administration and reports to the Home Ministry itself. In this situation, discussion on policy matters such as restricting internet speed may in any case happen on a routine basis between the Home Secretary and the officers of the J & K Administration.

Hence, if the Court wanted further deliberation on this issue, it could have directed the Home Secretary and the Jammu & Kashmir Chief Secretary to report back with their findings, and with a list of districts where there may be an absolute necessity to restrict the internet speed to 2G. Despite the inherent flaws that we have discussed above, there is one significant question that should pique our interest – which is the reason for the deferential approach that Courts tend to show when questions of national security are involved. 

One reason for this may be the fear factor that plays in the mind of the judge – regarding the possibility of having to take the blame of diluting national security interests, if an attack happens after a relaxation of restrictions is ordered. This may force a judge to play safe - and defer to the Executive’s claims of safeguarding national security. Cases which have significant national security implications hence pose difficult questions for a judge to answer.

However, this does not serve as a justification for not reviewing the actions of the Executive in accordance with Article 32, and examining whether there are alternative measures through which infringement of fundamental rights and national security interests can be balanced. While the Court here noted the existence of one such alternative measure - which is to restrict internet speed only in specific affected areas, it refused to give any conclusive decision on enforcing the same. For precisely this reason, this ‘order’ stems from no conclusive finding, and can be considered as an abdication of the Court’s primary function of judicial review.