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Right to internet fundamental for right to education: Faheema Shirin R.K. v. State of Kerala & Ors.
Date of judgment: 19/09/2019
Court: High Court of Kerala
Background:
The Petitioner, Faheema Shirin R.K., was a student at a Government-aided College in Kozhikode, Kerala. She resided in the college-run Hostel that allegedly barred the use of mobile phones and laptops from 10 pm-6 am. On 24/06/2019, the restriction was changed to 6 pm-10 am. A message was later sent by the Deputy Warden that stated those not complying with the rules would be asked to vacate the Hostel. However, the petitioner refused to abide by the rules, and as a result, an expulsion order was sent on 05/07/2019. On 08/07/2019, a meeting was held with the other inmates of the Hostel and was asked to submit their willingness to abide by the rules in writing, to which they all agreed. On 11/07, 2019, she was asked to vacate the Hostel within 12 hours but sought leave due to the long distance between her hometown and the Hostel. On 15/07/2019, the petitioner found that her room was locked and was not permitted to take her belongings.
The petitioner, through a writ, challenged her expulsion and contested that the right to access the internet forms a part of freedom of expression under Art. 19(1)(a) and that the restriction imposed was unreasonable.
Issue:
- Whether there was an infringement of fundamental rights by the respondents.
- Whether a restriction on mobile access in the name of discipline could be permitted.
Judgment:
The petitioner and her parents claimed that the restriction was imposed only on the Women’s Hostel and was thus grossly discriminatory. The restrictions were said to have contravened UGC Regulations, 2012, CEDAW, 1979, the Beijing Declaration, UDHR and severely impacted the quality of education. Emphasis was placed on the State Minister of Finance’s speech during the budget that stated, Kerala was moving towards digitization and aimed at making internet access available to all. The Counsel for the petitioner also submitted that forced seizes and searches on the part of the hostel authorities was a flagrant violation of the right to privacy envisaged under Article 21.
The campus did not provide any Wi-Fi services, and students had to rely solely on their own internet services. This also barred them from making use of UGC’s platform SWAYAM that enabled students to complete online courses in addition to college courses.
The hostel authorities submitted that the change in timings was based on requests of parents who were afraid of the ill uses and distractions caused by the use of mobiles. Furthermore, the restrictions were in place to ensure that the allotted study time was not disrupted due to the distractions posed by mobile phones. The respondent institution also added that the petitioner and her parents had signed an application that held they would submit to the restrictions in place. They clarified that there was no bar on laptops in place as contested by the petitioner and was thus not a ground to allege it impaired quality education. Moreover, the petitioner’s claim of gender discrimination was also negated on the fact that the men’s Hostel also had similar restrictions in place but during different time periods. The respondent institution then submitted that the campus had a diverse library with over 30,000 books made available, and the internet was not the sole source for education and information.
Extreme reliance was placed on the fact that all other inmates of the Hostel had consented to surrender their phones during the respective time frame except for the petitioner. It is pertinent to note that their submission was after the date the hostel authorities intimated the inmates about the stringent action taken against the petitioner. It is not possible to rule out the fact that their submission could have been a result of the threat of consequences placed before them.
The Hon’ble Court, in its rationale, commenced by enunciating that whenever a student enrolled in a Hostel, that student consented to abide by the rules and regulations imposed. The question under consideration was whether a student had a right to stay in the Hostel and whether the University had an obligation to provide accommodation. Reference was made to the Calicut University First Ordinance, 1978, whereby a student not residing with his parents or guardian had to stay in a hostel or lodging provided by/recognized by the University. It was recognized that a student had the right to stay in a hostel recognized by the syndicate, and the college subsequently had an obligation to provide accommodation.
With regard to the restriction, it was established that the purpose was merely to ensure discipline. However, the standard of viewing only mobile phones prone to misuse, especially during that specific time period, was held to be arbitrary and unreasonable. Misuse could happen at any time and with any device. The alleged indiscipline on the part of the petitioner was only that of non-obedience to an unwarranted rule.
The Court requested the authorities and parents to be conscious of the fact that these students were adults and capable of making decisions by themselves. Imposing a restriction based on a parental request for adults was held to be a gross violation of the individual autonomy of all the students. The Court also asked the respondents to be sensitive and aware of the fact that mobile phones and the internet have become an indispensable part of our daily lives, and the same was not merely a luxury anymore. Through the internet, students can make use of e-books, e-newspaper, e-resources, online courses, and a plethora of information at just the click of a button. The learned judge thus requested the authorities and parents not to turn away from its innumerable advantages for probable suspicions of misuse.
The non-prohibition on laptops was also not seen as an exemption as the Court very reasonably held that not all students could be expected to own laptops. The institution’s claim over its vast library was countered with the simple logic that students had the option to choose which medium they wished for studying. Every student above the age of 18 was said to have the freedom to choose the medium of studying, and mobile phones aided in education by providing access to the internet.
Reference was also made to multiple Resolutions by the Human Rights Council on access to the internet, such as 23/2 of 2013 and 20/8 of 2012, that equated the use of the internet to the pedestal of being an essential factor to further the right to education. These Resolutions and International Conventions were applied to the Indian context by incorporating the step taken in Vishaka & Ors. v. State of Rajasthan & Ors. [AIR 1997 SC 3011], i.e., by reading them into fundamental rights due to the absence of domestic legislation. The reasoning conveyed that when the Human Rights Council had itself recognized the internet as an essential facet for the right to education, the same could not be denied in the Indian context.
There was no rational nexus between the objective of discipline and the restriction imposed to achieve that discipline. The restriction violated multiple fundamental rights, and such a rule, regardless of compliance and submission, could not be treated as valid and enforceable. It was held to be a student’s autonomy to decide what use to make of the mobile phone and internet, and no student could be compelled to use or not use mobiles as long as it didn’t cause a disturbance.
Upon perusal of UGC Guidelines, it was reported that colleges were bound to run hostels to ensure that students had sufficient time to study. Subsequently, any restrictions imposed could only be for the purpose of disciple and not block means of education and information. Constant checks and seizing in the name of disciplinary action was a violation of the inmates’ right to privacy, and the same could not be justified on the ground of being an accepted rule.
Conclusion:
The verdict by the learned single judge bench at Ernakulam concentrated on the aspect of individual autonomy and the need for the internet in the changing circumstances. The right to internet access was held to be fundamental for furthering the right to education, and no arbitrary restriction could be imposed on the same. Rules had to be modified with the modernization of technology, and societal stigma could not come in the way of one’s dignity, privacy, and right to education.
The judge struck down the restriction on the use of mobiles as arbitrary and unreasonable and directed the respondent institution to re-admit the petitioner without any further delay. However, the respondent institution had the freedom to conduct checks in case of disturbances and distractions, and it was the duty of the petitioner and her fellow inmates to ensure there was no disturbance caused. The Internet plays an indispensable role in one’s daily life and furthers each citizen’s right to know and be informed under Article 19, and this judgment plays an incontrovertible role in emphasizing the need for the internet, especially in the realm of education.
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