On May 11th, 2020, the Supreme Court of India rejected the petition filed by the Private Schools Association of Jammu and Kashmir which demanded the restoration of 4G Internet services as the students in the valley are unable to access the online learning classes being held as a result of the COVID-19 lockdown. The judgment not only violates one’s right to access the Internet but also the right to education.
The COVID-19 pandemic, since its outbreak, has posed a major threat to public health throughout the world. However, the subsequent COVID-19 lockdown in India has tested the waters of the state’s allegiance towards ensuring the protection of basic human rights including the right to the internet, information, and education, especially in such unprecedented times. Several other countries like Bangladesh, Ethiopia, and Myanmar have also imposed multiple Internet shutdowns which violate the right to education of the individuals residing there. With over 62% of the student population around the world being affected by the school closures and classes shifting to online platforms, it becomes pertinent to determine whether the states are bound to protect the right to education during a pandemic or such extraordinary circumstances? The author tries to examine the states’ obligation to safeguard the right to education and answer this question.
The right to education is recognized as one of most basic human rights by the UDHR (United Nations Declaration of Human Rights) and almost all the countries throughout the world. The ICESCR (International Covenant on Social and Cultural Rights) which has been ratified by India, states that secondary and higher education must be made accessible to all through every “appropriate means” whereas the primary education must remain compulsory and free for all. The CESCR, in General Comment No. 13, has categorically stated that education must be economically and physically accessible via some modern technology which, considering the present circumstances, is the need of the hour.
However, the education system became vastly inaccessible to the students owing to various factors after the COVID-19 lockdown in India. Take, for instance, the case of students of Jammu and Kashmir in India. Following the social distancing guidelines, almost all the schools in India were shut down and the classrooms were shifted to online platforms. The 213 days long internet shutdown imposed after the abrogation of Article 370 of the Indian Constitution, continued in the valley even after the COVID-19 outbreak. Hence, the shift not only exposed the digital divide owing to the economic inequality and infrastructural incapacity but also the impact of the political disruptions on the student’s right to education in India.
A 2011 UN Report discusses the unique and transformative nature of the internet which allows the individual to exercise a range of other human rights and its ability to promote the progress of a society. The Kerala High Court, in a welcome move, has also regarded the right to access the Internet as a fundamental right. As a source of information regarding health-related issues, medicine, local happenings in the country, the internet acts a facilitator of the right to information and the right to health especially when the individuals cannot go out and seek information during a pandemic. The disruption to access to the internet has been recognized as a human rights violation by a UNHRC resolution.
With the classrooms shifting to online platforms, the internet plays a crucial role in ensuring that the flow of education remains undisturbed and the process of learning does not stop even during a pandemic. Moreover, The Charter of Human Rights and Principles for the Internet recognizes the right to use the internet for education and especially, the children’s right to use the internet to exercise their right to health and information. Hence, it is clear that the relationship between education and the Internet is growing by leaps and bounds with the Internet becoming an essential facilitator of education during such extraordinary times.
In a previous judgment regarding the restoration of internet services in the valley in January this year, the Supreme Court had clearly stated that the principle of proportionality and necessary duration of such restrictions must be followed while suspending the internet services. However, the Supreme Court, unlike the Kerala High Court, neither discussed nor recognized the right to access the Internet as a fundamental right.
As of now, the 2G internet services have been restored in Jammu and Kashmir through a government order. The petition filed by the Private Schools Association of Jammu and Kashmir contended that the students were unable to access the virtual learning classes owing to the slow internet speed. The Supreme Court upheld the restrictions owing to national security concerns but set up a Special Committee comprising of the government officials to examine the feasibility of restoring 4G internet which is ironic because such a committee makes the government a judge of its own case.
It is correct that the states have the authority to put restrictions on the exercise of our human rights on certain grounds. Article 29 of the UDHR states that the exercise of human rights can be subjected to certain limitations for maintaining public order and the general welfare in society. However, such restrictions must not be imposed on a particularistic basis but as a matter of law. The Supreme Court, in this particular case, failed to establish as to how is the internet speed acting as a threat to the national security of the country and went against its own decision is which it had stressed on the adherence to the principle of proportionality while imposing such restrictions.
The valley has already faced numerous internet shutdowns which have adversely impacted the education system. The apex court has itself emphasized the importance of technology in the 21st century by regarding it as an enabler of other rights. It is crucial that the government while formulating important plans related to education, acknowledges their long term impact on the lives of the individuals in the country. Let us not forget that education is a tool which possesses the power to promote the values of non-violence and equality even in a society that is going through political and social turmoil. The government must ensure that the flow of education remains undisturbed as it is extremely important that individuals remain aware and educated about their surroundings as education has the ability to instill a sense of self-reliance and knowledge that can effectively enable the humankind to sail through such challenging times.
Snehal Walia is an undergraduate student at Rajiv Gandhi National University of Law, Punjab, India. Snehal has a keen interest in constitutional law, technology law, and youth advocacy.
Suggested citation: Snehal Walia, snehal-walia-internet-education-jammu-kashmir, JURIST – Student Commentary, July 14, 2020, https://www.jurist.org/commentary/2020/07/snehal-walia-internet-education-jammu-kashmir/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
