Case: FOUNDATION FOR MEDIA PROFESSIONALS Vs. UNION TERRITORY OF JAMMU AND KASHMIR &amp; ANR

Anuradha Bhasin (supra) judgment): table 13. The above measures taken by the Respondent No. 1 have to be seen in light of the circumstances already highlighted by the learned Solicitor General regarding the existing law and order and national security situations in the Union Territory, and the occurrence of incidents that affect the integrity of the nation. The learned Solicitor General stated that since 05.08.2019, around 108 terrorist related incidents have taken place in Union Territory of Jammu and Kashmir, wherein 99 incidents were reported from the Kashmir province and 09 from Jammu province. In total, 30 civilians have lost their lives and 114 civilians have been injured. Further, more than 20 security personnel have been martyred and 54 security personnel have been injured. Moreover, 76 terrorists have been gunned down. These facts have not been rebutted by the Petitioners. This Court will have to consider the above in its analysis. It may be important to note that after this matter was reserved for orders, the Union Territory of Jammu and Kashmirhas filed another note, indicating that the militancy has significantly increased in the recent times, in the following manner: table Respondent No. 1 has also pointed to certain material, which indicate that cyber terrorism, is on the rise within the valley. The Respondent No. 1, has brought to the notice of this Court that the Pakistani Military in its Green Book 2020 has called for an information warfare on Kashmir, after the revocation of special status of Jammu and Kashmir. 14. 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. 15. However, the authorities in the Union Territories of Jammu and Kashmir have selected the 2G speed to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters to disturb the peace and tranquility of the Union Territory of Jammu and Kashmir. 16. In any case, we may note that the common thread in the impugned orders is that they have been passed for the entire Union Territory of Jammu and Kashmir. In this regard, our observations in the Anuradha Bhasin (supra) may be of some relevance: The degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation. Although the present orders indicate that they have been passed for a limited period of time, the order does not provide any reasons to reflect that all the districts of the Union Territory of Jammu and Kashmir require the imposition of such restrictions. At the same time, we do recognize that the Union Territory of Jammu and Kashmir has been plagued with militancy, which is required to be taken into consideration. These competing considerations needs to calibrated in terms of our judgment in Anuradha Bhasin (supra). 17. 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. 18. In this regard, our attention is drawn to the fact that blanket orders have been passed for the entire territory rather than for specific affected areas. 19. A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored. 20. Additionally, although the Petitioners have argued that the orders passed by Respondent No. 1 reveals non-application of mind, however, at the cost of repetition, it must be noted that the authorities have been taking steps towards easing of internet restrictions taking into account the prevailing circumstances. This can be seen from the fact that initially only whitelisted websites were allowed, before internet access to all websites was provided on broadband, and finally to postpaid and verified prepaid mobile users as well, although at 2G speeds. Further, the various steps taken by Respondent No. 1 with respect to ensuring the fundamental rights of the people, in relation to the existing COVID- 19 pandemic, must also be taken into account. 21. During the course of the arguments, the Respondent No. 2- Union of India has submitted that continuous infiltration, foreign influence, violent extremism and issues of national integrity are prevalent in the Union Territory of Jammu and Kashmir, which are serious issues. 22. In Anuradha Bhasin (supra), this Court has alluded to the fact that modern terrorism is being propagated through the internet and by using technology in the following manner: 39. Modern terrorism heavily relies on the internet. Operations on the internet do not require substantial expenditure and are not traceable easily. The internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies. The prevalence of the internet provides an easy inroad to young impressionable minds…. 23. At the same time, the Court is also cognizant of the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens. It may be noted that in the earlier judgment of Anuradha Bhasin (supra) this Court had directed that, under the usual course, every order passed under Rule 2(2) of the Telecom Suspension Rules restricting the internet is to be placed before a Review Committee which provides for adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Although the Petitioners have objected to the note filed by the Respondent No. 1, taking into consideration the far-reaching consequences of the issues involved herein, we have considered the submissions of both parties12. 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 Kashmir14. 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 ignored15. However, the authorities in the Union Territories of Jammu and Kashmir have selected the 2G speed to restrict the flow of information in order to prevent misuse of data by terrorists and their supporters to disturb the peace and tranquility of the Union Territory of Jammu and KashmirAlthough the present orders indicate that they have been passed for a limited period of time, the order does not provide any reasons to reflect that all the districts of the Union Territory of Jammu and Kashmir require the imposition of such restrictions. At the same time, we do recognize that the Union Territory of Jammu and Kashmir has been plagued with militancy, which is required to be taken into consideration. These competing considerations needs to calibrated in terms of our judgment in Anuradha Bhasin (supra)17. 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 earlier19. A perusal of the submissions made before us and the material placed on record indicate that the submissions of the Petitioners, in normal circumstances, merit consideration. However, the compelling circumstances of cross border terrorism in the Union Territory of Jammu and Kashmir, at present, cannot be ignored20. Additionally, although the Petitioners have argued that the orders passed by Respondent No. 1 reveals non-application of mind, however, at the cost of repetition, it must be noted that the authorities have been taking steps towards easing of internet restrictions taking into account the prevailing circumstances. This can be seen from the fact that initially only whitelisted websites were allowed, before internet access to all websites was provided on broadband, and finally to postpaid and verified prepaid mobile users as well, although at 2G speeds. Further, the various steps taken by Respondent No. 1 with respect to ensuring the fundamental rights of the people, in relation to the existing COVID- 19 pandemic, must also be taken into account23. At the same time, the Court is also cognizant of the concerns relating to the ongoing pandemic and the hardships that may be faced by the citizens. It may be noted that in the earlier judgment of Anuradha Bhasin (supra) this Court had directed that, under the usual course, every order passed under Rule 2(2) of the Telecom Suspension Rules restricting the internet is to be placed before a Review Committee which provides for adequate procedural and substantive safeguards to ensure that the imposed restrictions are narrowly tailored.