Open Access Research Article
AN ANALYSIS ON THE TERMINATION OF TELECOM SERVICES IN STATE OF JAMMU & KASHMIR WHILST THE ABROGATION OF ARTICLE 370 BY: SHOAIB PARVEZ
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Article Details
AN ANALYSIS ON THE TERMINATION OF
TELECOM SERVICES IN STATE OF JAMMU & KASHMIR WHILST THE ABROGATION OF
ARTICLE 370
AUTHORED: SHOAIB PARVEZ
Currently Pursuing BA.LLB at Christ University Delhi
NCR.
Ph. No: +919541328840
Hypothesis:
A research issue must be interesting
to the researcher, and the researcher must be engaged in finding the solution,
according to eminent authors. With the development of society and the growth of
the population, there has been a strong demand for the protection of civil
liberties and the interests of individuals, which is the responsibility of the
government. This empirical study elaborates on the situation in Jammu and
Kashmir as Article 370 is repealed on August 4th, 2019. In this research paper,
the author will focus on the state's situation in relation to trade and
commerce barriers, social trauma, psychological anguish, adherence to the
doctrine of proportionality by the authorities, and the elimination of telecom
services. The author also discusses trade and commerce barriers, social trauma,
psychological anguish, and social trauma. The central argument of this study
centres on the infringement of fundamental rights that each person has and
those are also guaranteed by the Indian Constitution. Even though unrest is
frequently observed and experienced in Jammu and Kashmir, its effects are
harmful to society as a whole. In this study, the author will focus on the
effects of the ramifications that the locals were afraid of, which had a
negative impact on their ability to support themselves.
Research Questionnaire:
1) What were the effects of stopping
telecom services for 282 days in Jammu and Kashmir, and what are the
ramifications of continuing similar practises today?
2) Did the state's internet
censorship measures adhere to the Doctrine of Proportionality?
3) What were the concrete
repercussions that the state's kids had to deal with?
Scope And Limitation:
The time period covered by the
research and the questionnaire is only up to the point at which the government
first asserted its claim to the freedom of speech, access to the internet,
freedom of movement, right to an education, right to a life of dignity, and
right to practise any profession. The phrase "livelihood" is
restricted to employment, trade (any company), and education. The phrase
"psychological trauma" only refers to the locals' mental health. The
phrase "Youth" refers to people who are under the age of 18.
Objective:
The goal of this essay is to close
legal gaps that are detrimental to a person's wellbeing, and it doesn't contain
any criticism of any authorities or people. This essay will show how the
state's daily operations were impacted by the termination of the telecom
services. This essay will also place focus on the doctrine of proportionality's
adherence. The main goal of this essay is to summarise a framework that might
be used to prevent violations of fundamental human rights or natural rights.
Research Methodology:
The author used a doctrinal,
non-doctrinal, and empirical research technique. The provisions of the
legislation, court decisions, news items, and international treaties will be
heavily stressed by the author. Since he is a native of the region, the author
has engaged in empirical research to add depth and meaning to the study's
findings.
Background and History:
There isn't much new information in
this report for educated observers of Jammu and Kashmir or its many residents.
But a lot of information that may be well known, particularly in the valley, is
not well known throughout the rest of India. We think the general population in
India will be aware of the severity of human rights abuses in this state. A
large section of the Indian state's population and its own elected officials,
who are regarded as agents of the Indian state, alienated a significant portion
of the population, it is obvious to any objective observer that the Jammu and
Kashmir uprising was the outcome. Jammu & Kashmir, as is well known, joined
the Indian Union in 1947 under highly unique circumstances when Maharaja Hari
Singh was captured by tribal looters as a result of the invasion supported by
Pakistan. Maharaja required the assistance of the Indian army to combat them.
Despite playing a key role in convincing the Kashmiris to join India, Sheikh
Abdullah was imprisoned by the wary Indian government from 1953 to 1975 until
the 2005 Indira-Sheikh Agreement. 1975. The Kashmiri people received the most
of the autonomy in the meantime. Successive Coalition governments actively
undermined states under Article 370 of the 1952 amendment to the Indian
Constitution by utilising elected compliant governments in generally regarded
rigged elections to promote the ruling party. The majority of the Kashmir
issue's corrective actions were administrative[1].
The major objective of Kashmiri politics continues to be the state's unification
with India. The psychosocial characteristics and ambitions of Kashmiri
communities have not previously been highlighted in Kashmiri politics. The
importance of national integration has always taken precedence over the
regional component of the state and the diverse aspirations of the sub-region.
This exacerbated anti-Indian prejudice and further alienated the valley's
populace. The 1987 elections are regarded as the turning point that sparked a
significant revolt in the valley in 1989, even though Pakistan has continued to
assist separatist forces in Kashmir since 1947.
The Muslim United Front, a coalition of parties, has presented a
significant threat to the National Conference, which is now in power. In an
election that was reportedly rigged by the National Conference [NC], MUF lost
in contrast to expectations and forecasts made by the general public. This
exacerbated public resentment towards both the Coalition government and NC, the
largest pro-India party, which presumably created the political and social
foundation for the brutal insurgency that persisted to this day. According to some estimates, 60,000 people
died as a result of the army, paramilitary units, police, and fighters who had
surrendered engaging in insurgency and counter insurgency operations. Human
rights violations are a direct result of this brutal and occasionally brotherly
fighting. The Armed Forces (Special
Powers) Act 1958 as amended in 1972 is the primary statute governing military
action in Jammu and Kashmir. The measure, according to human rights groups, is
unlawful and goes against international humanitarian law. The Supreme Court
maintained the statute, as it did in the TADA case[2],
but offered specific instructions for how to apply it in light of potential
human rights breaches. Nevertheless, we consider it to be a "illegal
law" that goes against both domestic and international law. The term "disturbed area" is not
specifically defined by law. The state governor or federal government has the
authority to designate a region as a "disturbed area" under Section
3. Such a state of emergency needs to be a temporary solution and cannot
persist for decades, as one UN expert on human rights has noted. The
Convention's Article 6(1)[3],
which among other things declares that "No one shall be arbitrarily
deprived of his life," is broken by this. Once India has ratified the
Convention, its provisions may even take precedence over the Constitution under
international law. In other words, the Armed Forces Special Powers Act[4]
cannot be considered legal and valid on the basis that it is constitutional,
even if it violates the Convention. Either way, human rights activists always
say that the law also violates the Constitution. Like TADA, it transgresses the
fundamental rights articles 14 and 21.
1st Research
Questionnaire:
1) What were the effects of stopping
telecom services for 552 days in Jammu and Kashmir, and what are the
ramifications of continuing similar practises today?
We now live in a world where the
internet is crucial to meeting all of humanity's requirements. In the modern
period, the internet and other connected services are used by 60%[5] of
the world's population.
According to the aforementioned
graph, 60% of the world's population relies on the Internet for jobs, trade,
and education. The Charter of Human Rights and Principles for the Internet,
which was published by the Internet Governance Forum, a subsidiary of the
United Nations, and the Internet Rights & Principles Dynamic Coalition, an
international network of people and organisations working to uphold human
rights in the online environment and in all areas of Internet policing, also
recognise the Internet as a right entitlement. Every person has a right to
access the Internet, according to the Charter. The Internet, which is becoming
more and more significant in our daily lives, provides hitherto unheard-of
prospects for the achievement of human rights. Therefore, it is essential that
all actors, public and private, respect and defend human rights online.
Additionally, measures must be implemented to guarantee that as the Internet
grows and develops, it does so in a way that fully upholds human rights. The 10
Rights and Principles[6]
are intended to help realise this vision of a rights-based Internet
environment:
1. Universality and equality
2. Rights and social justice
3. Accessibility
4. Expression and association
5. Privacy and data protection
6. Life, liberty, and security
7. Diversity
8. Network equality
9. Standards and regulation
10. Governance
In the case of Anuradha Bhasin v.
Union of India[7],
which is covered by Article 21 of the Indian Constitution, the Supreme Court of
India intervened while the residents of the state of Jammu & Kashmir were
being denied access to these internet rights. However, the question at hand is
whether internet shutdowns are still common in 2019 despite this recognition.
A report by internet shutdowns claims
that the state has seen a total of 241 internet outages[8],
which have disrupted locals' daily lives.
These shutdowns have hurt the state's
economy by encouraging barriers to trade, e-commerce, and all other sectors of
commerce.
The freedom to conduct business is
acknowledged as a fundamental right under Article 19(1)(g) of the Indian
Constitution. Telecommunications services being eliminated has led to commercial
practises that are against this law. Although it was determined in the instance
of that the authorities have the power to impose reasonable restrictions that
are for the better interest of the general public and was held in the case of The provisions of the Bombay Municipal
Corporations Act of 1888[9]
were challenged in Bombay Hawkers Union v. Bombay Municipal Corporation[10]
before the Supreme Court on the grounds that the authorities had the arbitrary
power to grant or deny permits to street vendors and to evict unlicensed
peddlers without giving them a chance to be heard. The Supreme Court disagreed
with this claim, finding that public roadways are by definition established for
the benefit of the general public. Nobody has the fundamental right to engage
in behaviour that irks, harms, or inflicts hardship on the general populace.
Therefore, it is assumed that the BMC Act's provisions are not in conflict with
Section 19(1)(g) of the Constitution and are of a reasonably restricted nature
in the public interest. The entire business class in the state of Jammu and
Kashmir has been forbidden from conducting business that could otherwise be
done using electronic means without disturbing the public and could be done on
an electronic platform in the form of marketing, digital, entrepreneurship,
etc.
The following are the main issues
that the suspension of internet services in Jammu and Kashmir has caused for
business owners[11]:
1. Unable to send
required paperwork.
2. Impossible to use
online services.
3. The difficulty in
locating the required data.
4. The inability to
transfer money online.
5. A decline in
clientele.
6. The loss of jobs,
labourers, or employees.
2nd Research
Questionnaire:
Did the state's internet censorship
measures adhere to the Doctrine of Proportionality?
The doctrine of proportionality[12]
is applied during the judicial review phase of administrative law. According to
the principle, there must be a logical connection between the desired result
and the actions required to get there. The action may subsequently be contested
through judicial review if it does not completely violate the court's
conscience. An example will enable you to understand it better. The punishment
must be appropriate, meaning that the employer can treat it as unpaid leave and
issue a warning or even a fine but not pay one if there are still missing
workers at the job forever let go service will be disproportionate. According
to Sir John Laws, courts are interested in how decision-makers have prioritised
"compatibility" as a principle. The proportions idea has European roots.
One of the most significant legal elements of "European administrative
law" penetrates all of European administrative law. The Wednesbury concept
of reasonableness, which outlines the minimal standard of reasonableness that
public bodies must adhere to in their decisions, has long been seen as a
component of the principle of proportionality in the UK. According to him, any
decision that is so stupid that no rational expert could make it should be held
accountable for and scrapped by judicial review. The Wednesbury principle
addressed the proportionality notion, but from a judicial standpoint, the
courts have seen judicial intervention differently. The withholding principle
entails carefully weighing the plausibility of a claim. In other words, for
this theory to be used, there must be a balance between benefits and harms in
the outcomes of managerial actions in addition to rational decision-making. As
a result, when compared to the "reasonability" test, the
"compatibility" test has a larger and broader impact on the scope of
judicial review. Furthermore, the Court considers both the public and private
interests in the case while applying the proportionality principle, although
this is not done when using Wednesbury's principle of unreasonableness.
The Omkumar V. Union of India[13]
judgement by the Supreme Court, The Supreme Court approved the proportionality
doctrine's use in India in this particular case. The Supreme Court's surprise
discovery in that instance, however, that Indian courts have consistently adopted
the proportionality theory since 1950 when addressing the legality of acts
seems unusual. motion. The laws that infringe the fundamental liberties
outlined in Section 19(1) of the Indian Constitution are dealt with by the
legislature. The Indian courts have had plenty of chances to evaluate whether
the limits are appropriate for the circumstances and the least restrictive
measures are taken, according to the Supreme Court.
The same holds true for laws that
contravene Articles 14 and 21 of the Indian Constitution. The Supreme Court
came to the same judgement regarding the application of the idea of
proportionality in administrative action in India after closely reviewing the
circumstance in England. Although it was not mentioned expressly, the Supreme
Court noted that administrative acts in India that impact basic freedoms
(Articles 19 and 21) were frequently contested for lack of proportionality. It
is obvious that the proportionality principle was used in this situation. The
Court adamantly maintains that the idea of proportionality is applicable to
judicial review of administrative conduct that violates Articles 19 and 21 of
the Indian Constitution. In Anuradha Bhasin v. Union of India[14],
where the top court defined five problems, the limits are similarly
disproportionately implemented in the State of Jammu and Kashmir:
1. Is the government immune from
having to produce all restriction orders?
2. Do the Constitution's Articles
19(1)(a) and 19(1)(g) protect the freedoms of speech, expression, and the right
to engage in any profession or carry on any occupation, trade, or commerce
through the Internet?
3. Is the government's decision to
forbid internet use legal?
4. Was it legal to impose movement
limitations in accordance with Section 144 of the Code of Criminal Procedure?
5. Were the limits a violation of the
petitioner's right to freedom of the press under W.P. (C) No. 1031 of 2019?
So far, we are only concerned with
issue number 2 and 3:
Issue 2nd: First, the Court maintained that
the Internet is covered by the right to free speech enshrined in Article 19 of
the Indian Constitution. The court overturned its case law that had protected
novel forms of expression. The Supreme Court ruled in Indian Express v.
Union of India[15]
that the freedom of the press in writing is protected by the right to freedom
of expression. The right of citizens to watch films is viewed as a component of
a fundamental right to freedom of speech in Odyssey Communications Pvt. Ltd.
vs. Lokvidayan Sanghatana[16].
The freedom of speech and expression provided by Article 19 must be practised
online because it has become one of the primary channels for the dissemination
of information. However, this freedom may be constrained by Article 19(2) of
the Constitution. As a result, the Internet is also essential for trade and
commerce, and some companies have become totally reliant on it. Therefore,
clause 19(1)(g) of the Constitution also guarantees the freedom of business and
the commercial use of the Internet, subject to the restrictions outlined in
section 19(6). Since neither side in the case made this claim, the Court
refrained from declaring Internet access to be a fundamental right. After that,
the Court will decide if and how much freedom of expression may be limited. Article
19(2) of the Indian Constitution gives the government the authority to impose
restrictions on freedom of expression as long as they are legal, reasonable,
and used for legitimate ends. A comprehensive list of justifiable restrictions
is outlined in the Constitution, including "interests in sovereignty,
integrity, security, friendly relations with foreign countries, public order,
decency or morality, ethics or contempt of court, defamation or incitement to
commit a crime." The Court discovered that restrictions on the right to
free speech and expression could result in outright prohibitions after
analysing its case law on the interpretation of Article 19(2). In certain
circumstances, a total prohibition shouldn't unnecessarily restrict the right
to free speech, and the government should explain why less restrictive
alternatives are inappropriate. Ultimately, depending on the specifics of each
case, the Court will decide whether a restriction results in an absolute injunction.
The geopolitical setting of the limits was then discussed by the Court. agrees
with the government that terrorism has long been a problem in Jammu and
Kashmir. The court observed that contemporary terrorists mainly rely on the
internet, which enables them to disseminate propaganda and false information,
generate money, and enlist others in their cause. Therefore, the Indian
government has stated that in order to "combat terrorism in its
infancy," restrictions must be imposed. The Court ruled that the "war
on terror" could not be classified as a scenario creating public
disturbance because it was distinct from territorial disputes and evolving into
various forms that influence daily life. The Court came to the conclusion that
speech inciting impending violence was not protected by the First Amendment of
the United States[17]
after reviewing its case law dating back to 1863. The court drew attention to
the fact that the courts and US president have regularly curtailed free speech
in the name of national security. The first case involves Vallandigham[18],
who was jailed and convicted in 1863 for publicly calling him "evil,
wicked, evil." and superfluous. Justice Holmes stated in Abrams v.
United States[19]
that the government of the United States has the authority to retaliate against
speech that creates or is intended to create a clear and immediate danger, and
that this authority is "certainly greater" during wartime than it is
during peacetime because war opens up dangers that do not exist at other
times. In Brandenburg v. Ohio[20],
the U.S. Supreme Court ruled that supporters of illegal behaviour could only be
punished by states if they aim to or have the ability to encourage
"imminent anarchic action." Finally, the Court of India reaffirmed
that US Attorney General Ashcroft chastised anyone who questioned the erosion
of fundamental rights as a result of the war on terror in the post-9/11
setting. To be more specific, "Your actions only encourage terrorists,
when they do erode our national unity and weaken our determination. To
those who frighten peace-loving people with the spectre of losing their
freedom, my message is this. They provide America's adversaries ammunition. The
court cited the recent case Modern Dental College & Research Centre v.
interdependence[21]
of all rights, and thus they can be restricted. In that ruling, the Court further
discovered that when fundamental rights are in conflict, they must be weighed
against one another such that "they harmoniously coexist with one another.
Similar to the First Amendment, the
Indian Constitution permits the government to impose restrictions on free
expression, but the restrictions must be proportionate. To guarantee that a
right is not reduced more than is necessary, the Court emphasised the need for
the proportionality criteria. The Court rejected the premise that a government
should be prevented from pursuing the public good at the expense of public
interests and was cautious about striking a balance between national security
and liberty. standard rights. The Court defines proportionality in this vein as
the determination of whether "to regulate the exercise of fundamental
rights, the choice of the most suitable or least restrictive measure has been
introduced by the legislator or administrator to achieve the subject matter of
the law" or the subject of an administrative order, as the case may be.
The Supreme Court then performed a thorough comparative analysis of the
Canadian, German, and Indian courts' sufficiency standards. Despite widespread
agreement that proportionality is a crucial instrument for establishing
judicial balance when addressing situations that restrict basic rights, it is
discovered that there is no consensus about the idea that symmetry and balance
are comparable. The Court then explained how it interpreted the sufficiency
test:
1. The restriction's objective
must be justifiable.
2. The limitation must be required.
3. The authorities must decide if
there are any alternatives to the restriction.
4. The least restrictive option
should be used.
5. A court must be able to review the
restriction.
The court further stated that its
territorial and temporal limits and scope must be tied to what is required to
address an emergent situation. The idea of proportionality necessitates a
restriction that is adapted to the level of restriction, the duration of the
emergency, the nature of the emergency, and the type of restriction[22].
Issue 3rd: The Court then reviewed limitations
on freedom of expression online after introducing the concepts of
proportionality and reasonable restrictions. He categorically rejects the
state's reasoning for outright prohibiting internet access because he lacks the
tools to do so and because embracing this logic would make the state want to
outlaw internet access entirely at all times. However, the Court acknowledged
that there was "great merit in the government's assertion that the
Internet could be used to spread terrorism, thereby challenging India's
sovereignty and integrity" and that it should therefore assess how much
the restriction affects the right to free speech. The Court emphasised that in
determining whether an Internet shutdown is legitimate, it must take into
account both procedural and substantive concerns. The procedural mechanism is
composed of two parts. Contracts between Internet service providers and the
government are the first. The second item of law is one that is governed by the
Indian Telegraph Act of 1885[23],
The Code of Criminal Procedure of 1973[24],
and the Information Technology Act of 2000[25]. The
Court primarily focused on the latter case in its consideration because it was
immediately relevant to the current case. The government may limit
telecommunications services, including internet access, under suspension rules
passed in 2017 under section 7 of the Telegraph Act, subject to specific
safeguards. The first of these safeguards is a suspension order, which can only
be issued by the Minister of the Government of India in charge of the
Department of Home Affairs or the Minister of State Government. In unavoidable
situations, another government official who is not the Chief Secretary of India
may issue an order as long as the appropriate authority accepts it within 24
hours since broadcast. The suspension must be lifted within 24 hours if it is
rejected. The reason for the suspension must be specified in the orders, and a
copy of the order must be sent to a review committee made up of senior state
authorities. The justifications must not only detail why the suspension is
necessary, but also the "inevitable" circumstance that calls for the
order. Additionally, the Telegraphic Act's Section 5(2) only enables suspension
orders in the event of a public emergency or for the sake of public safety. The
Court came to the conclusion that the government must first decide that a
public emergency exists and not any other circumstance in order to give a
temporary suspension. Although the Telegraphic Act does not define the term
"public emergency," it is obvious from its use in conjunction with
the phrase "in the interest of benefits to public safety" that the
meaning can be inferred. The Supreme Court observed that different people
define emergencies differently. For instance, Article 4 of the International
Covenant on Civil and Political Rights[26]
states that a public emergency must be formally declared if it endangers the
State's existence. Article 15 of the European Convention on Human Rights[27],
which states: In times of war or other public emergency endangering the
survival of the nation, also uses similar language. A "public
emergency" must be of a serious character, we can only emphasise this. Although
the disclosure of government orders is a well-established legal and natural
justice concept, the Court notes that the suspension regulations do not provide
provisions for this. if the decree has an impact on someone's life, liberty, or
property. The offended party has a constitutional right to protest suspension
orders, according to the court's reiteration of Article 226 of the Indian
Constitution. The Court once more maintained that, if required, "stopping
the provision of telecommunications services, including the Internet or not, is
an extreme step, only contemplated by the State when it is deemed
"necessary" and "inevitable." To that purpose, the state must determine
whether there are any other less drastic remedies available. The Suspension Rules
don't define a limit, the Court pointed out that the suspension rules do not
specify maximum length of the suspension. However, the Court determined that an
indefinite suspension was undesirable after taking the principle of
proportionality into account. The Court ruled that as the suspension
regulations do not outline an acceptable closing period, the review committee
should set the deadline and make sure it does not exceed the required amount of
time. Eight orders have been presented to the court by the state. The Inspector
General of Police has authorised four, and the government of Jammu and Kashmir
has accepted the remaining four. The attorney general said that while some
limits are being relaxed, the government is nevertheless continuously evaluating
the issue. The court acknowledged that the threat to public safety could not be
disregarded, but it made clear that any additional limits would need to be put
in place in accordance with a fresh order. Since the Court was unable to
analyse the public order situation or view all orders to determine which ones
were no longer in force, it "moulded the relief in the operative
portion." We can infer from the aforementioned statistics that internet
shutdowns are only partially and not completely unavoidable[28].
3rd Research
Questionnaire:
What were the implications
specifically faced by the youth of the state?
The youth of the state were deprived
of their right to pursue education because of the relentless restrictions and
internet shutdowns. When it comes to an individual's complete development,
education is of the utmost importance. In the 1992 case of Mohini Jain v.
State of Karnataka[29],
the Supreme Court of India upheld the state of Karnataka's right to charge
students admitted to the state above the "government seat quota"
exorbitant tuition fees at private medical colleges in the state. An prospective medical student named Mohini
Jain petitioned the Supreme Court to object to the declaration. "Is the
right to education guaranteed to Indian citizens under the Constitution of
India?" the Supreme Court asked as a crucial question. Although they are
not explicitly listed in Part III of the Constitution, the Supreme Court of
India has determined that the phrase "personal life and liberties" in
Article 21 of the Constitution implicitly implies a number of other rights that
are crucial for the complete development of human beings. of personality. The
right to education is protected by Article 21 of the Constitution since it is
one of the things that contributes to an individual's overall development. The
court must now respond to the following important inquiries:
a) Does the Indian Constitution
provide the "right to education" for all citizens?
b) Will the use of a fixed rate
tariff violate the people's constitutional right to education if the right is
guaranteed?
c) Does the capitation of tuition
costs at educational institutions violate Article 14 of the Indian
Constitution, which states that "The State shall not deny the equal rights
of any person before laws or laws of equal protection in the territory of
India"?
The court ruled that it is never
acceptable for human dignity to be infringed and that it is the duty of the
state to uphold and defend the dignity of its inhabitants. The only way to
ensure that people have human dignity is to develop their character, which can
only be done by educating them. 70% of the populace was illiterate when the
Constitution was written and ratified in 1950. In ten years, the constitution's
authors planned to have 100% of the population literate. Articles 41 "The
State shall take effective measures to secure the right to work, education and
social assistance within the limits of its economic capabilities and
development, in case of unemployment, old age, sickness, or injury, or in other
cases of poverty" and Article 45 "The State shall endeavour to
ensure, within ten years of the effective date of this Constitution, compulsory
and free education for all children up to the age of four" are motivated
by this hope. The Court cited many
sections of the Indian Constitution and reaffirmed that its preamble guarantees
"justice, social, economic, and political" as well as "freedom
of thought, expression, belief, faith, and worship" to all Indian
citizens. Additionally, it ensures "equal status and opportunity" as
well as personal dignity. If the citizens of this nation are not educated, the
goals from the opening that are written on paper cannot be realised. The Court
ruled that even though Part III of the Indian Constitution does not explicitly
recognise the right to an education as a fundamental right, the combination of
Article 21 from Part III and Articles 38, 39(a), (f), 41, and 45 from Part IV
of the Indian Constitution shows that the Constitution's authors intended for
the state to be obligated to provide education to its citizens. According to
Article 21, "No person shall be deprived of his life or personal liberty
except in accordance with due process of law." Article 21 guarantees the
right to life, and the right to education is a requirement for the right to
dignity to also be upheld. Therefore, the state is required to offer
educational facilities at all levels for the benefit of all citizens because
every person has a fundamental right to education. The right to an education
must be protected in all state-owned or accredited educational institutions. The
Constitution's Part IV, Guiding Principles of State Policy, states that in
order to advance citizen welfare, the State must maintain social order and
reduce inequality. Part IV's Articles 38 and 39 are meant to serve as a
framework for government programmes that ensure individuals have sufficient
means of subsistence and give children the chance to grow up healthy and
completely. If the right to education outlined in Article 41 is not made
available to all citizens, then the actuality of fundamental rights under
Part III will not be exercised by illiterate citizens. As a result, the
fundamental rights guaranteed in Part III of the Constitution go hand in hand
with the right to education. Only if citizens are informed and conscious of their
own dignity will they be able to fully enjoy and execute the fundamental rights
provided in Part III of the Constitution, including freedom of speech and
expression as well as other rights under Article 19. The way to alleviate
inequality and guarantee acceptable living conditions is through education.
People who are illiterate are vulnerable to abuse. The vision reflected in the
Constitutional provisions cannot be realised without education. The Court
determined that Part III's fundamental rights were inseparable from the guiding
principles that were essential to the nation's governance. They should be
viewed as essential rights since they complement one another. There is no
such rule derived from the law of the country that stresses that if a state is in
disturbance, one must be restricted from pursuing education. However, while the
internet shutdowns by the state's officials were in effect, it is a blatant
infringement of this right. Numerous internet outages that the valley has
previously experienced have had a severe effect on the educational system. By
considering technology to be a tool for advancing other rights, the Supreme
Court itself has emphasised the significance of technology in the twenty-first
century. The government must consider how its educational policies will affect
people's lives over the long term when it develops these crucial initiatives.
Remember that even in a society experiencing political and social upheaval,
education can be a strong tool for advancing equality and peace. The government
must make sure that education continues uninterrupted because it is crucial for
people to be informed and aware of their surroundings since education has the
power to instill a sense of empowerment and knowledge. Knowledge can aid
humanity in successfully overcoming such challenges. times of difficulty. The
way people interact, in particular, has undergone a total transformation thanks
to the internet. The primary method for disseminating knowledge in the modern
day is the Internet. Its user base and resource availability are both expanding
daily. The aggressive measures taken by governments in various nations to
control the Internet also show that "the democratic potential of the
Internet is stifling." Legislation, censorship, and blocking techniques
are frequently used to impose restrictions and controls on Internet material
due to many factors, including "political, social, commercial, national
security, and cultural interests." The Kashmir Valley occasionally
experiences internet outages. However, the people of Kashmir experienced the
longest internet blackout in history, lasting 282 days from August 4, 2019, to
May 12, 2020. Between 2012 and 2017, Kashmir had the most internet disruptions,
followed by Rajasthan, Haryana, and Gujarat. On the evening of August 4, 2019,
Kashmir's internet service was shut down. On August 5, 2019, the Indian
government abolished the state of Jammu and Kashmir's (J&K) special status
under Articles 370 and 35A. Union Territories of J&K and Ladakh are separated
from the state. A government-imposed curfew, restricted communications
networks, including internet, cable TV, landlines, and mobile services, and the
closure of all educational institutions were all implemented to prevent unrest
over the decision, particularly in Kashmir. The Indian constitution protects
both the freedom of thought and expression as well as the freedom to conduct
business online. Internet censorship amounts to a violation of fundamental
human rights. Every aspect of life is being impacted by the internet blackout,
particularly Kashmir's corporate and educational sectors. Government workers
and entrepreneurs completing income and goods and services tax (GST) returns
are impacted by the internet suspension. The pace of development is directly
impacted when e-procurement stops in Kashmir. Driver's licence applications
from individuals and submissions of vehicle insurance and eligibility from
providers are not permitted online.
Passengers on local trains in Kashmir are unable to access the National
Train Information Investigation System to look up local train schedules online.
The Postal Service's wide range of services, including "reservation of
registered mail, parcels and counterfeit items, money transfers, insurance
packages, express mailers, savings certificates and cash banks, phone payments,
money transfers, and more," are all impacted by the Internet blackout.
Banking operations were also severely impacted. People who pay their energy
bills online are currently paying them at the relevant locations, which causes
long lines and prevents other mental diseases from being treated online.
Patient is unable to confirm online claims that samples were shipped out of
state for examination. The majority of patient data is not digitalized in
hospitals in Kashmir. Doctors are unable to refresh themselves with new
information. Save the Heart and J&K Blood Donors, two online medical
support networks, have been shut down. Under the Ayushman Bharat online
healthcare programme, poor patients in Kashmir are ineligible for free care.
All private industries and enterprises in Kashmir were forced to close due to
political instability, frequent strikes, and internet service outages, which
ultimately had a devastating effect on the region's economy. Kashmir. A
thousand people lose their employment each day, and Kashmir's daily economy
loses roughly Rs. 165 crore. Without the Internet, total industrial output
declines by 70%, and particular industries such as agriculture, handicrafts,
and the Kashmiri bat industry see a 50–60% decline in exports. When compared to
the same time over the previous five years, the tourism sector which is
regarded as the primary driver of Kashmir's economy recorded the lowest number
of visitors to the valley from August to November 2019 at 36,105. Internet
censorship hurts e-commerce. Prior to the internet censorship, Kashmir received
between 3,000 and 5,000 online shopping items each day. Owners of e-commerce
businesses do their business on a variety of websites and social media
channels. Due to unpaid annual subscription fees, several websites have
vanished from the internet. Education and research in Kashmir have collapsed as
a result of the silent internet. Due to a scarcity of internet connection
equipment, students must wait for a very long time outside internet cafes.
Scholars from Kashmir have been unable to register online for national and
international conferences or access academic resources. Additionally, they are
unable to publish their research in publications or qualify for awards. However,
some researchers have been able to relocate in order to continue and finish
their work within a set amount of time. However, not every researcher can
relocate in order to access the internet. Students' research and studies are
being hampered by the inaccessibility of university and college e-library
resources due to internet censorship.
Literature Review:
The
Supreme Court of India's decisions in various instances, along with daily news,
reports, publications, and international covenants, were used to broaden the
author's interpretations of the emphasised parts of the Indian Constitution.
The Indian Express The Indian Constitution, Perspective India reports from
the World Bank, The Office of the High Commissioner for Human Rights, Internet
shutdowns, Anuradha Bhasin v. Union of India, Legal Services India, Omkumar v.
Union of India, International Expression Freedom Information and Technology
Act, Telegraph Act, Code of Criminal Procedure of 1973, Columbia University,
Jurist.org, In the cases of Modern Dental University & Research Centre v.
State of Madhya Pradesh, Indian Express v. Union of India, Odyssey
Communications Pvt. Ltd. v. Lokvidayan Sanghatana, Dennis v. United States,
Abrams v. United States, and Brandenburg v. Ohio, The Indian Telegraphic Act of
1885, the Information and Technology Act of 2000, and Shaheen Welfare
Association v. Union of India, Armed
& Special Forces Act 1958, Universal Declaration Of Human Rights 1948,
International Covenant on Civil and Political Rights 1966 and European
Convention On Human Rights 1950.
Conclusion:
This study aims to address a number
of important goals, with a particular emphasis on updating current laws,
filling any gaps in the law, identifying administrative power restrictions,
promoting the recognition of internet use as a fundamental right, and emphasising
that rights shouldn't be permanently restricted. Additionally, it intends to
demonstrate obedience to the law of proportionality, ensure the principle of
Suprema Lex, and highlight the detrimental effects of cutting off telecom
services. It also aims to throw light on the results of delayed telecom
service. First of all, this research acknowledges the necessity of updating
laws and rules to keep up with the quickly changing digital landscape. As
technology develops, new difficulties and complications appear, necessitating
the modification of legal frameworks. This study seeks to modernise the law in
order to keep it current, functional, and capable of addressing new problems
relating to internet usage and telecommunication services. Additionally, this
study aims to close any legal gaps that might arise. It aims to pinpoint
instances where laws may fall short or be insufficient in addressing the
obligations and rights related to telecom services and internet use.
Policymakers can improve legal safeguards and advance a more complete and
inclusive regulatory framework by identifying these gaps and taking the
necessary action. Finding and comprehending the restrictions on administrative
power in regard to telecom services and internet use is another crucial goal.
This requires assessing the power and latitude of administrative bodies and
making sure that their decisions are supported by rules of law. This study
tries to maintain accountability and avoid any abuses or arbitrary choices by
defining the boundaries of administrative power. This report further emphasises
that access to the internet is a fundamental right. It emphasises the need of
addressing internet access as a basic requirement and encouraging fair and
inexpensive access for everyone. By recognising internet access as a right, it
is implied that any restrictions placed on it must be carefully considered and
cannot be put in place arbitrarily or permanently. The report also clarifies
the detrimental effects of cutting off telecom connections. It examines how
such behaviours affect people, communities, and economies, highlighting the
value of sustaining connectivity and the potential damage brought on by
disruptions. Additionally, it draws attention to the negative effects of slow
telecom service as well as the difficulties and restrictions that customers
encounter while dealing with poor or inconsistent connectivity. The study aims
to promote better infrastructure, service quality, and accessibility by
highlighting these consequences in order to ensure that users may fully benefit
from digital technology. Additionally, the study tries to show compliance with
the law of proportionality. According to this concept, any limitations on
rights, such as those affecting internet access, must be reasonable in relation
to the purposes that are being pursued. This study aims to verify that limits
are justified and do not excessively infringe upon individual rights by
assessing the proportionality of actions made by authorities. In this study,
the Suprema Lex principle which states that the law is supreme is crucial. It
emphasises that all decisions and activities regarding internet use and telecom
services must adhere to current legal frameworks. The goal of the study is to
encourage adherence to the rule of law by making sure that judgements are made
in accordance with accepted legal standards rather than on whim or unfettered
power. In conclusion, this research aims to update laws, fill in legal gaps,
restrict administrative power, promote internet use as a right, highlight the
detrimental effects of service interruptions, show proportionality, and ensure
adherence to the Suprema Lex principle. Policymakers may create comprehensive
and effective policies that safeguard individual rights and promote the expansion
and advancement of digital technology by concentrating on these goals.
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[11] TY
- JOUR
AU - Qadir, Shahid
AU - Dar, Amir
PY - 2021/07/01
SP - 109
EP - 116
T1 - How Internet Shutdowns Affects the
Entrepreneurs in Jammu and Kashmir
VL - 12
DO - 10.4018/IJABIM.20210701.oa7
JO - International Journal of Asian Business and
Information Management
ER -
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Article Information
AN ANALYSIS ON THE TERMINATION OF TELECOM SERVICES IN STATE OF JAMMU & KASHMIR WHILST THE ABROGATION OF ARTICLE 370 BY: SHOAIB PARVEZ
Authors: SHOAIB PARVEZ
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/29
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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