(NON) ACCESS TO INTERNET AND TRAMPLED RIGHT TO EDUCATION IN JAMMU AND KASHMIR

By: Mohd Kumail Haider and Areeb Uddin Ahmed

Judicial Response To Internet As a Fundamental Right Earlier this year, in the case of Anuradha Bhasin v. Union Of India, the Supreme Court had ruled that an indefinite suspension of internet services would be illegal under Indian law and that orders for internet shutdown must satisfy the tests of necessity and proportionality. However, the Court did not lift the internet restrictions and instead, it directed the government to review the shutdown orders against the tests outlined in its judgment and lift those that were not necessary or did not have a temporal limit. The Court reiterated that freedom of expression online enjoyed Constitutional protection, but could be restricted in the name of national security. The Court held that though the Government was empowered to impose a complete internet shutdown, any order(s) imposing such restrictions had to be made public and was subject to judicial review. The court in its judgement used the word “we declare” in the matrix of Article 141 of the Indian Constitution, the meaning of which is that any law declared by Supreme Court shall be binding throughout India and the compliance ought to be made with sincerity. It held that the reasonability must be there while upholding  restrictions and that it must be minimum and least intrusive, keeping in tap the scrutiny of available alternatives, which  should be given preference and adopted.

The historic decision of the Supreme Court in Om Kumar v. Union of India, the application of proportionality doctrine was accepted in India. Security and liberty both are quintessential of democracy as balance  between individual rights and concern of state has to be realised and harmonised equivocally. While fundamental rights are not absolute, so is the power of imposing excessive and harmful restrictions. No arbitrariness can be given place and it must be done with a rationale approach ensuring that the procedural fairness must be guaranteed in securing adequate security for the state as well as the sufficient liberty for the civilians, which is in equal volumes important. Restrictions should never be of the kind that hamper legitimate opinions and exercise of democratic rights, as that of right to education, right to trade, etc.

Right To Education And Internet Access

The right to access to the internet is also a salient feature of the Universal Declaration of Human Rights (UDHR). Article 19 of the UDHR states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” The High Court of Kerala in a recent judgment in Faheema Shirin R K v. State of Kerala & Others, stated that “When the Human Rights Council of the UN have found that the right to access to the internet is a fundamental freedom and a tool to ensure the right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of the law.” It was also pointed out that the lack of access to the internet had a differential and higher impact on weaker sections of the society who depend on it for life and livelihood.

A petition regarding the ideal and non-compliant review committee for their violations has been grieved before the Supreme Court, as per which internet services of the entire Union Territory of Jammu & Kashmir continue to be unilaterally restricted to 2G speeds without even a façade of review or oversight provided by the Executive Branch of government. The Special Committee's failure to apply the proportionality standard; or determine the appropriateness of the alternatives; or restore faster (3G/4G) internet speeds on a "trial basis" is evident from the fact that nearly one year has elapsed since Indian citizens living in Jammu &Kashmir, who are entirely innocent of any wrongdoing and for no fault of their own, have been deprived of proper internet services, which has become even more important during the time of the COVID-19 pandemic.

There has been a chilling effect on “freedom of speech and expression” and “right to education” with restrictions on necessary and standard speed internet. The judiciary’s abdication of its duty and its entrustment of the same to the executive is emblematic of a Faustian bargain, where not only are the ideals of the Constitution at stake, but also the rights of the common citizens. It is also concerning that not much voices have been raised for the people of valley, let alone for the students who are abruptly lagging behind due to arbitrary internet restriction in place.

Internet Accessibility And The Need Of High Speed Services

It was brought into light by the National Sample Survey (NSS) round 75th that only around 10.7% of the households have computer and only 24% have Internet facility. Also the digital literacy rate was too low, the ability to operate computer was around 16.5 % and to use the Internet was 20.1%. Hence, when the digital literacy is also not so high then how can we expect the children to adopt this digital platform so easily. But after Article 370 has been revoked the situation in Kashmir is very different, because Internet access was granted after a period of 6 months, that too the 2G services were re-activated. In these tough times, when the world is fighting against all the odds, there is a valley which is living without high speed internet access. Internet, which is a developing basic right, it’s access is also equally important. We have been witnessing, how the education has taken a paradigm shift from offline classes to online conferences. But is 2G enough to access online educational forums?

The evolution of internet has been one of the fastest man-made innovation, which is nearly accessible in every country. But in Kashmir, the pandemic has blatantly affected the right to education and internet access for the student community. If you are using 2G services, then it takes around 3-4 minutes to load a normal web page, around 40 minutes to download an application, 2 second to send an email without ‘an attachment’. So, it is really not educate yourself virtually, if you have no access to high speed internet. Recently, a committee was instituted to review the situation for restoration of 4G services, but its decision was not affirmative. “Forget leisure, the situation is so abhorrent that a Kashmiri student does not even have access to education”, says Shayan, a Technological Engineer from the Valley, who is stuck there since the lockdown has been announced.

 ( Source :https://internetshutdowns.in/)

Right To Education: Limited Or Compulsory?

Section 8 of the Right of Children (to free and compulsory education) Act, 2009 confers a duty on the appropriate government to ensure that the child belonging to ‘disadvantaged group’ are not discriminated against and prevented from pursuing elementary education on any grounds. The Act defines the category of ‘disadvantaged groups’ as - child belonging to Schedule Caste/Tribe or such other group having disadvantage owing to social, cultural, economical and geographical or such factor as may be specified. Hence in this case, the whole Valley has been under some blatant restrictions and the concerned authorities haven’t fulfilled their duty because internet shutdowns have blatantly violated the right to education the children in the valley.“The grainy video, the frequent drop calls, the background noises, the poor sound quality, and the unreadable words on the board get on your nerves, and make the entire learning process a pestering experience.” - Says, Sameena, a 9th class student from Srinagar. Not only the government schools are suffering, but also the ‘celebrated’ Private-funded schools are having problem with going online during the lockdown. The President of Private Schools Association Jammu and Kashmir (PSAJK), GN Var contended that most of the Private schools are not able to conduct online classes during the pandemic coupled with 2G services.

It was observed by the court, in Environmental & Consumer Protection Foundation v. Delhi Admin, [(2011) 13 SCC 1] that the “policy framework behind education in India is anchored in the belief that the values of equality, social justice and democracy and the creation of a just and humane society can be achieved only through the provision of inclusive elementary education to all. Provision of free and compulsory education of satisfactory quality to children from disadvantaged and weaker sections is, therefore, not merely the responsibility of the schools run or supported by the appropriate Governments, but also of schools which are not dependent on government funds.”

Virtual Graduation And Non - Access To The Virtual World

Even the students, who haven’t seen their Universities since March, are facing the same problem, some are stuck because of the low speed services, and even if one is able to access the website, it takes around 2-3 hours to open the module. The University Grants Commission has issued some guidelines regarding the wrap up of the final year students, but how will someone access to the transformed digital platform without a competent internet connection and the situation is still not clear as how the implementation of these guidelines would be taking place. An exhaustive report was compiled by the Forum of Human Rights in Jammu and Kashmir, on how the pandemic and the lockdown has affected the children, along with the teachers. The outcome of the survey was very disturbing, because most of the children were not able to adopt the ‘digital’ platform, either because of the economical condition or the constant internet shutdowns. It also analyzed how the mental health of the students was affected because of the lockdown, and most of them became ‘aggressive’ due to ‘desperation at not being able to access the internet.” Hence, this lockdown coupled with internet blockade, not only violated the basic human right  to internet access but along with, it also took away the little privilege which these children had. National Security being the only reason, cannot take away all the rights which have been promised under the Indian Constitution, the alternative route should always be less ‘aggressive’ and it should qualify the proportionality test. As it has been rightly stated  by Lord Denning that “You must not use a steam hammer to crack a nut if a nut cracker would do” (1983 in R. v Goldsmith.)

About the author(s)

Mohd Kumail Haider and Areeb Uddin Ahmed are law student at Faculty of Law, Aligarh Muslim University | Twitter: (@Areebuddin14), (@Kumailhaider777)