As the petition related to restoration of4G internet service in Jammu & Kashmir was listed before Supreme Court onWednesday April 29th, Government of Jammu & Kashmir in its vagueresponse told Apex Court that right to access internet is not a fundamentalright? As per the media reports the response filed by Government further saidthat state can curtail the freedom of speech and the right to trade throughinternet. The response filed by Government not only violates article 19 of theconstitution but this violates even laws like Right to Information (RTI) andRight to Education (RTE), plus article 14 as well. The response moreover goesagainst the Supreme Court’s order issued in January this year wherein the courtupheld that internet was a fundamental right. The order reads as:
“We declare that the freedom of speech andexpression and the freedom to practice any profession or carry on any trade,business or occupation over the medium of internet enjoys constitutionalprotection under Article 19(1)(a) and Article 19(1)(g). The restriction uponsuch fundamental rights should be in consonance with the mandate under Article19 (2) and (6) of the Constitution, inclusive of the test of proportionality.”
The submissions before Supreme Court onpart of J&K Union Territory administration were made in response to a writpetition filed by an NGO called Foundation for Media Professionals and J&KPrivate Schools Association seeking restoration of 4G internet services inJammu & Kashmir especially at a time when there is complete lock-downacross India due to COVID-19 pandemic.
Internet & RTI
If access to internet is not a fundamental right as per the response of Govt of J&K , the access to information which in broader terms is called Right to Information Act (RTI) is indeed a fundamental right. We must know that Right to Information has been categorized as a Fundamental Right under Article 19(1) of the Indian constitution by the Supreme Court in its several judgements. During COVID 19 lock-down the only mode to seek information from Government is through online platforms for which high speed internet is essential and prerequisite. This means internet is the tool to ensure restoration of our fundamental rights within the meaning of Right to Information Act (RTI). I had already written a piece on this issue last week as residents of J&K are even denied access to information through an online mode. RTI applicants can’t to to Govt offices to file RTI applications and sending the same via speed post and courier is also not possible. Government will claim that there are no issues to file an RTI application with 2G speed before the Public Authorities working under Central Government which accept online RTI applications, but is that practically possible?
CIC’s advisory
The Central Information Commission (CIC) has already requested Government to upload the information related to measures taken by Government to tackle COVID-19 in line with provisions of Section 4 of RTI Act-2005. CIC directed Government of India to provide a link at CIC website updating steps taken by it to deal with the COVID-19 situation. The Commission is nowadays disposing off pending 2nd Appeal and Complaints through the use of technology ie Video Conferencing. How can appellants and complainants from J&K avail this facility? The Central Chief Information Commissioner Mr Bimal Julka in his email communication with former Chief Information Information Commissioner Mr Wajahat Habibullah said that Central Information Commission (CIC) has requested Administrations of J&K and Ladakh to appoint CPIOs at the earliest and share the list with the Commission. On the other-hand officers in J&K Government openly violate RTI Act especially post 370 abrogation as the feel they have no accountability in view of closure of State Information Commission (SIC). Pertinently Mr Wajahat Habibullah had forwarded my article titled ” Lockdown and our Right to Information” (GK on April 25th) to Central Chief Information Commissioner, Mr Julka, and he had responded to him through a detailed email which was further forwarded to me by Mr Habibullah. CIC Mr Julka further mentioned in his email that CIC has asked UTs of J&K and Ladakh to transfer the scanned copies of pending 2nd appeals /complaints to the Central Information Commission, New Delhi as J&K State Information Commission stands closed down post article 370 abrogation. When these appeals or complaints from J&K or Ladakh will be listed for hearing before CIC through Video Conferencing, what shall these appellants or complainants do? Shall a complainant from Gurez travel to Bandipora NIC center for case hearing or appellant from Titwal will come all the way to Kupwara NIC center crossing Sadhna Pass? Had Govt provided access to 4G internet, the appellants could appear before CIC case hearing sitting at home via Skype as I appeared for one such hearing in year 2010.
Internet and RTE
The Right to Education Act (RTE) which wasenacted in year 2009 ensures that each child in India receives qualityelementary education irrespective of their economic or caste background; thisincludes children who are forced to drop out of school. After COVID 19Pandemic, students across globe are attending online classes through variousinternet applications like Zoom , Skype etc. This is prevalent in stateslike Maharashtra, Delhi, Tamil Nadu etc. In J&K these video applicationshardly work with 2G network and instead only audio classes are held by manyschools which includes Govt schools as well. These audio classes is a mockeryas there is no eye contact between a teacher and a student which in turn violatesthe right to education of children through video conferencing ?
In response to how 4G internet wasimpacting education, the Government’s response is absurd and unreasonable. Thereply says that “majority of the students” did not have access to smartphonesor computers. I agree that all the Govt students don’t have laptops andcomputers but for information of Government out of 1.30 crore population ofJ&K, there are more than 67 lakh mobile phone subscribers. Out of these 67lakh mobile subscribers around 70 % population owns smartphones as per my roughestimation. The reason is that smartphones are not at all costly now andresidents of J&K have a better quality of life than UP, Bihar, West Bengalor Maharshtara. This is one of the reasons that majority of people ownsmartphones in J&K which now cost as low as Rs 3000. So to say majority ofGovt school students do not have access to smartphones and that is why they aredenied access to 4G internet is an unjustified and thoughtless assumption.
Conclusion
Access to Internet is indeed a fundamental right and by saying that it is mere enabler of rights is not justifiable. Article 19 gives citizens freedom of expression and speech and by banning 4G internet in J&K, Government has violated this constitutional provision. In addition to it denial of access to 4G internet also violates article 14 of the constitution which says that state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. If 4G internet service is not snapped for weeks or months in Delhi, UP or any other state or UT across India, why deny this service in people of J&K on the pretext of security issues? There are many countries like Iraq, Yemen, Afghanistan and Syria where insurgency is at its peak and far more violent but the authorities there hardly deny their people the access to internet ?
Dr Raja Muzaffar Bhat is Founder & Chairman of J&K RTI Movement