On 19 September, 2019 the case of Faheema Shirin. R.K vs. State Of Kerala added another pearl to the rich jurisprudence of Article 21. Since the pronouncement of Maneka Gandhi v Union of India in 1978, Article 21 has seen a fundamental shift. It has become a charter of unremunerated rights which greatly transformed the constitutional governance of our nation. Recognition of Right to access Internet by Kerala High Court empowers citizens of their digital rights. Judgment has provided technological trappings to Article 21. In order to understand the implications of the judgment facts of the case need to be discussed in brief.
A student in a Kozhikode college had challenged restrictions on mobiles in hostel. She averred that the inmates of the hostel were not allowed to use their mobile phone from 10 p.m. to 6 a.m. within the hostel and that undergraduate students were not allowed to use laptop also in the hostel.
ARGUMENTS ADVANCED BY PETITIONER GIRL
Petitioner attacked expulsion order on multiple grounds. She cited Articles 14, 19, 21, International Treaties, Conventions, Resolutions, and Commitments etc. The learned Counsel for the petitioner argued that the restrictions imposed as well as her expulsion consequent to it are illegal as it infringed her fundamental right to freedom and expression, right to privacy, right to education, etc In substance according to her the order is logically and legally untenable. Following is the summary of grounds raised:-
- Citizens have the right to
- Access the Internet to gain information, wisdom and knowledge
- Right cannot be curtailed unless it encroaches into the boundary of illegality.
- The restrictions amount to violation of the principles embodied in the Conventions on Elimination of All Forms of Discrimination against Women, 1979 (“CEDAW”) and the Beijing Declaration along with Universal Declaration of Human Rights.
- It is claimed that the right to access internet forms a part of freedom of speech and expression guaranteed under Article 19(1)(a) and the restrictions imposed do not come within reasonable restrictions covered by Article 19(2) of the Constitution of India
- Being an adult she claims that nobody has any authority to interfere with her freedom to use the mobile phones. It is argued that the forceful seizure of mobile devices have invaded the right of privacy of the hostel inmates
- Modification of rules on the basis of parental concern is also an infringement on her personal autonomy as well as that of other inmates of the hostel.
- It is stated that as per the study and survey conducted by UNESCO, women are at a disadvantaged position in terms of internet access and 70% of the users are men. Referring to the Information Technology Policy, 2017 it is stated that institution of learning are fundamental in developing scientific temper and facilitating IT access.
- It is also stated that the confiscation of mobile phones is in violation of their right to privacy as well as their right to property under Art.300A
- The hostel contended that the restriction was in the interests of students’ discipline to ensure that they study without distractions
ISSUE UNDER CONSIDERATION
Whether the restrictions imposed by the hostel authorities enforcing discipline has infringed the fundamental rights of the petitioner, even assuming that such modification was brought about at the request from the parents?
Court in 29 pages judgment gave detailed reasoning demonstrating why the restrictions imposed is illegal in the prevailing Digital Era. Judgment added “If a restriction is unreasonable and arbitrary and infringes the fundamental right of an inmate, it cannot be said that the student has to abide by such restriction, especially when the inmate is an adult.” Court in effect opined non-recognition of such right will hinder the education advancement of nation. Important remarks are mentioned hereunder:-
- The fact that parents have consented to the restrictions will not make them valid, as students who have attained majority have decisional autonomy.
- The mobile phones which were unheard of once and later a luxury has now become part and parcel of the day to day life and even to a stage that it is unavoidable to survive with dignity and freedom.
- A student above the age of 18 years shall be given the freedom to choose the mode for her studies provided it does not cause any disturbance to others.
- College authorities as well as the parents cannot be permitted to shut their eyes on the innumerable advantages out of internet on various aspects of learning with worldwide connectivity, on its proper usage.
UNGA Resolution 26/13
Court’s attention was invited to the fact that the United Nation’s General Assembly had declared right to internet to be a human right in 2014. United Nations General assembly held on 14 July, 2014 the following resolution was adopted:
- Emphasizing that access to information on the Internet facilitates vast opportunities for affordable and inclusive education globally, thereby being an important tool to facilitate the promotion of the right to education, while underlining the need to address digital literacy and the digital divide, as it affects the enjoyment of the right to education.
- Calls upon all States to promote and facilitate access to the Internet and international cooperation in the development of media and information and communication facilities and technologies in all countries;
- Affirms that quality education plays a decisive role in the world and therefore calls upon all States to promote digital literacy and to facilitate access to information on the Internet, which can be an important role in facilitating the promotion of the right to education.
- Taking the assistance of Vishakha v. State of Rajasthan precedent, HC observed the right to have access to Internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India.
- The Apex Court made it clear that the freedom of expression included the right to be informed and right to know and feeling of protection of expansive connectivity.
- Supreme Court observed that the fundamental right of expression includes “the right to be informed and the right to know and the feeling of protection of expansive connectivity” the Internet offers on the click of a button.
- The total restriction on its use and the direction to surrender it during the study hours is absolutely unwarranted. When the Human Rights Council of the United Nations have found that right to access to Internet is a fundamental freedom and a tool to ensure right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.
- No student shall be compelled either to use mobile phone or not to use mobile phone. It is for each of the students to decide with self-confidence and self-determination that she would not misuse it and that she would use it only for improving her quality of education.
Court also gave suggestion what needs to be done to discipline a student without necessitating expulsion. It runs as follow:-
“I am of the view that what is required is a counselling for the students, as well as parents in the colleges. The students in the hostels should be given counselling in order to inculcate in them self restraint in the usage of mobile phones, to make them capable of choosing the right path, to make them aware of the consequence of misuse as well as advantage of its proper use. It should be left to the students to choose the time for using mobile phone. The only restriction that can be imposed is that they should not cause any disturbance to other students. While acting in exercise of right to privacy, persons like the petitioner shall also see that such exercise does not invade the right to privacy of another student residing in the hostel especially in her room.”
It is said a good start is half done. However, when it comes to law such maxim do not hold good. Law is concerned with starting, middle and end. Procedures devised in law must be above board. Though Kerala HC recognition of digital right is a good start but it will always exist in fluid state unless legal framework is devised around the same. IT Act to this effect can be suitably amended. Recently, Sudan Interim constitution under Article 56 recognized the Access to Internet Right. It can act as a good inspiration for an advanced country like India in relation to Sudan, which was war-torned for years.