In the current pandemic, when both the economy and education increasingly revolve around the internet, the state of Kashmir in India has a ban on high-speed internet connections, in place since 5 August 2019. Whilst other parts of the country have installed 5G technology, Kashmir has access only to limited 2G connections, with speeds of 16-64 kbps. Using that speed, it takes minutes to open a single webpage and hence living a life online is impossible for citizens of the state.

THE BAN CREATES IMPOSSIBLE HURDLES TO FUNDAMENTAL RIGHTS IN THE PANDEMIC

The restriction on the internet during the pandemic violates the right of the people of Kashmir to education, health, business, and expression. Additionally, such a restriction leads government orders, information, and advice for COVID-19 treatment to be inaccessible in the state. Due to this inaccessibility, doctors have limited knowledge of the treatments for COVID-19 released in other parts of the country and internationally. Furthermore, it prevents access to the telemedicine guidelines released by the Indian Government to provide healthcare to citizens through digital platforms and reduce the number of  people visiting hospitals. The dual unavailability of the latest treatments and telemedicine consultations violates the Right to Healthcare which comes under the scope of Article 21 of the Indian Constitution.

The ban also goes against the Right to Access to Justice, with the courts currently working virtually and the complaint filing process shifting to an online mechanism. As with access to telemedicine consultations, the high-speed internet ban has made access to justice impossible for citizens of Kashmir.

Further to the issues surrounding access to medicine and justice, the ban has serious implications for work and education. The Indian Government ordered organisations to implement a work from home approach that is unworkable in Kashmir. The inability of citizens to work due to the high-speed internet ban violates both the Right to Livelihood mentioned under Article 21, and the right to trade provided in Article 19(1)(g) of the Indian Constitution. Finally, the Government ordered the closure of all schools and universities, with teaching moving to online platforms. These platforms do not work in Kashmir and therefore the Government is in violation of the Right to Education provided in Article 21-A of the constitution. 

THE BAN CONTRAVENES SUPREME COURT RULING 

The ban also stands in contravention of the recent decision of Anuradha Bhasin v Union of India, when the Indian Supreme Court mandated the use of the “principle of proportionality” when restricting the right to freedom of speech and expression provided in Article 19(1)(a) of Constitution. Additionally, the court ordered the government to justify restricting Fundamental Rights, and elaborate on how any alternative of lesser gravity would be adequate. In the current crisis, such a ban is disproportionate because various fundamental rights of the citizens are compromised. It is also arbitrary because it applies to the whole state and not to the risky parts where internet services might turn out to be unsafe. 

ISSUES UNDER INTERNATIONAL LAW

In international law, the high speed internet ban contravenes several international obligations of the Indian Government provided in the Universal Declaration of Human Rights (UDHR). Firstly, it violates Article 19 of UDHR which protects the Right to Freedom of Speech and Expression, contradicted through the inaccessibility of social media platforms and other mediums. Secondly, the ban is also in contravention of both Article 23 and 26 of UDHR which provide the Right to Work and the Right to Education respectively. Further, the ban infringes on the International Covenant on Economic, Social and Cultural Rights, since Article 12 mandates the Right to Health and Control of Epidemic Diseases.  Lastly, it infracts on The Siracusa Principles released by the United Nations Economic and Social Council, which clearly state that any restriction, irrespective of the emergency, must be non-intrusive to the extent that it does not come in the way of achieving the objective of protection of the citizen.  

The government of India took a manipulative approach in providing 2G connections, so that the order does not violate the Fundamental Right to Internet under Article 19 of the Indian constitution. However, in the current pandemic, the ban is inconsistent with various other fundamental rights that prevail to protect the basic human rights of citizens. Furthermore, it disregards human rights provided for by international law. 

Shubham is a 4th-year student of National Law University Odisha (India). He has a keen interest in Human Rights Law, International Law, Constitutional Law and Labour Law.

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