Supreme Court Issues Notice On Private Schools Association Plea Against Internet Shutdowns In J&K

Advocate Shadan Farasat, appearing on behalf of the petitioner-society, informed the Bench composed of Justices B.R. Gavai and B.V. Nagarathna, of the "ground reality" of the Union Territory. In doing so, he invoked the law laid down in Anuradha Bhasin v. Union of India [(2020) 3 SCC 637], where the apex court had ruled that an indefinite suspension of internet services would be illegal and that orders for internet shutdown must satisfy the tests of necessity and proportionality. Farasat said –

"There have been orders which are regularly being passed by the Union Territory which are in violation of the Anuradha Bhasin principles. Meanwhile, a lot of teaching that is happening, even today, is a mix of online and physical classes. That is the reality of Jammu and Kashmir."

Justice Gavai pointed out that a Special Committee had been constituted by an order of the Supreme Court in Foundation for Media Professionals v. U.T. of Jammu and Kashmir [2020 5 SCC OnLine 746], which was directed to look into "the prevailing circumstances" and immediately determine "the necessity of the continuation of the restrictions". He said –

"But we had directed some committee to be constituted to examine the necessity of continuous internet services."

However, Farasat claimed that the orders being issued by the Department were in violation of the earlier directions of the Supreme Court –

"That is not happening on the ground. The orders that are being passed right now are quite problematic. Whereas, in Anuradha Bhasin, the Court had given a mandate of a reasoned order."

Farasat proceeded to take the Court through a recent order issued by the Department on October 3, 2022 –

"The reasoning is so broad. The order refers to 'anti-national elements', 'miscreants'…It's the most general reasoning. What is the specific ground on which mobile data services are being suspended? How will any court judicially review this?"

On being asked about the petitioner's "specific grievance", Farasat conceded that the writ to the extent of asking for a restoration of 4G internet services had become infructuous inasmuch as in February 2021, after 18 months of a shutdown, high-speed internet was officially restored in the Union Territory. However, crackdowns on the internet were frequent, jeopardising the education of children in Jammu and Kashmir and violating Articles 14, 19, 21, and 21A, it was claimed. Farasat asserted –

"These principles are still not being followed. We use phones for everything today, for communication with parents for instance."

Gavai enquired –

"Why do you need to use data? You can still make calls and send messages."

Farasat responded –

"There is difficulty in sending messages and making calls because of the suspension of the network services. Moreover, a lot of teaching that is happening today is still hybrid. There is a difficulty."

Farasat concluded by informing the Bench that a similar matter was pending before the top court and requesting for the present petition to be heard with that –

"The same issue is being raised in an IA. This Court has said that because Anuradha Bhasin was a three-Judge Bench, another three-Judge Bench must be constituted and then referred it to the Chief Justice. All I am praying is, this is an identical issue, and therefore, for it to be tagged along with that."

The Bench orally pronounced the order to issue notice, seeking responses from the respondents impleaded in the petition, including the Home Department of the Government of Jammu and Kashmir and the Union Ministry of Home Affairs.

Internet Freedom Foundation provided legal assistance in the petition.

Case Titles

Private Schools Association J&K v. Home Department & Ors. [WP (C) No. 63/2021]