Right To Access Internet Is Part Of Right To Privacy And Right To Education: Kerala HC

Right To Access Internet Is Part Of Right To Privacy And Right To Education: Kerala HC
It is highly remarkable that the Kerala High Court has just recently on September 19, 2019 in a latest, landmark and extremely laudable judgment titled Faheema Shirin RK Vs State of Kerala and others in WP (C) No. 19716 of 2019 (L) has taken a giant step forward by declaring clearly, categorically and convincingly that right to access internet is a fundamental right forming part of right to privacy under Article 21 of the Constitution of India. This commendable judgment was delivered by a single Bench of Justice PV Asha while allowing a petition filed by a student named Faheema Shirin challenging the unwarranted restrictions on the usage of mobile phones in a girls hostel. The Kerala High Court also added that it also forms part of the right to education. Very rightly so!

To start with, the ball is set rolling in para 1 of this commendable judgment which briefly states the background of the case by saying that, “A 3rd semester B.A. student of Sree Narayanaguru College, Chelannur, Kozhikode, has filed this Writ Petition aggrieved by her expulsion from the hostel. It is stated that she has been staying in hostel run by the college which is an aided college affiliated to University of Calicut. It is stated 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. While so from 24.06.2019 onwards the duration of the restriction in using the mobile phones was changed as 6 p.m. to 10 p.m. The petitioner claims that though she, along with other inmates of the hostel, met the Deputy Warden – the 5th respondent, requested to convene a meeting of the inmates, explaining the inconveniences caused to them on account of the restrictions, the Deputy Warden or the matron did not respond. It is also stated that though a meeting was convened within a week thereafter, no discussion was made regarding the restriction of the electronic devices. It is stated that the 5th respondent sent a Whatsapp message informing that those who do not abide by the rules would have to vacate the hostel. The petitioner claims that she thereupon approached the Principal on 03.07.2019 and submitted Ext.P2 letter requesting to relax the restrictions. Thereupon, Ext.P3 letter was obtained from her in writing to the effect that she was not willing to abide by the new rule restricting usage of phone between 6 p.m. to 10 p.m. Thereupon her parents were asked to meet the Principal on 05.07.2019; the 4th respondent informed them that the petitioner has to vacate the hostel as she refused to abide by the rules; Ext.P4 memo dated 05.07.2019 was issued to her directing her to vacate the hostel immediately; respondents 4 to 6 convened a meeting of the hostel inmates on 08.07.2019 when the students were informed about the action taken against the petitioner based on her request to relax the rules and that the inmates were asked to give in writing their willingness to abide by the restrictions when all the hostel inmates except the petitioner submitted such willingness; on 11.07.2019, Ext.P5 notice was issued to the petitioner directing her to vacate the hostel within 12 hours; on 15.07.2019, the petitioner submitted Ext.P6 leave letter for the period from 12.7.2019 on 15.7.2019, as it was not possible for her to attend the classes since she had to travel nearly 150 km every day; when the petitioner reached the hostel on 15.7.2019 to vacate her room, it was seen locked and the hostel authorities did not allow her to take her belongings.”

Before proceeding ahead, it would be useful to mention the names of all the 7 respondents. They are as follows: –

1. State of Kerala represented by the Secretary;

2. University of Calicut represented by its Registrar;

3. University Grants Commission represented by its Secretary;

4. Principal Sree Narayanaguru College, Chelannoor, Balussery, P.O. Kozhikkode;

5. Deputy Warden, Women’s Hostel, Sree Narayanaguru College;

6. Matron, Women’s Hostel, Sree Narayanaguru College; and

7. SFLC.IN represented by its Executive Director, New Delhi.

No doubt, it is rightly pointed out in para 8 that, “The question to be considered is whether the restrictions imposed by the hostel authorities on use of mobile phones while enforcing discipline has infringed the fundamental rights of the petitioner, even assuming that such modification was brought about at the request from the parents.”

Going forward, it would be useful to have a quick look at the relevant part of para 9 which states that, “However in this case the question to be examined is whether such enforcement of discipline by restricting the use of mobile phones would result in curtailing the right of the students to acquire knowledge by different means. Using of mobile phones by itself would not cause any harm to anyone. 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.”

Furthermore, while examining the impact of using mobile phone in hostel, it is then enunciated in para 10 that, “It is therefore necessary to examine whether usage of mobile phone during 6 pm to 10 pm would amount to indiscipline and whether the refusal to abide by the instruction in using it should result in expulsion from the hostel. It is stated that the object behind introducing such a restriction is to see that the students are utilizing their study time for study purposes alone. The respondents have not stated whether usage of mobile phone by the petitioner or by any inmate caused any disturbance to other inmates. Therefore, indiscipline comes only to the extent of disobedience of an instruction. Then the question is whether an instruction or restriction can stand in the way of acquiring knowledge by the inmates. It is also necessary to examine whether they can utilise the study time for study purposes using the mobile phones also, in this advanced world of technology. The college authorities as well as parents should be conscious of the fact that the students in a college hostel are adults who are capable of taking decisions as to how and when they have to study. It is a fact that there is large scale misuse of mobile phones; but that misuse can happen with the laptops also; it can be even before 6 pm and 10 pm, before and after the study time.”

While underscoring the growing indispensable importance and necessity of mobile phones in routine life, it is then rightly pointed out in para 11 that, “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. Though initially it was a mere replacement of land phone enabling one to connect another and talk, on the advent of internet the connectivity became so wide. On availability of more and more facilities, since the year 1998, the number of users gradually increased and as at present India stands 2nd in the world in the usage of internet. The facilities to access internet, which was initially possible only through desktop computers, later in laptop, is now available in mobile phones which are handy and portable; with more and more applications, connectivity became feasible for everyone everywhere even among the common man. Apart from the facilities to read E-newspapers, e-books, etc. one can undergo online courses also sitting at home or hostel and it is pointed out that there are courses under SWAYAM recognized by the UGC, which students can undergo even when they are undergoing regular studies in colleges. Though the respondent college has stated that there is no restriction for the inmates to use laptops, all the students would not be ordinarily able to afford to have a laptop in addition to mobile phone. Assuming that the purpose is to prevent misuse of mobile phones during study time, such misuse is quite possible with laptops also. Thus the purpose of such restriction would not be achieved. It would not be proper for the college authorities to impose such restrictions on students of the college going age even if it is at the request of parents, in their anxiety to see that their children are studying and not being misdirected through mobile phones. It is a well known fact that these phones as well as the modern technologies are prone to misuse. At the same time, the 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 world wide connectivity, on its proper usage. Apart from facilities for interaction, exchange of ideas or group discussions, there are several methods by which the devices can be usefully utilised by its proper use by downloading of data or e-books or undergoing other courses, simultaneously utilising the facilities under the Swayam program of UGC, etc; knowledge can be gathered by adopting the method which one chooses. When one student may be interested in garnering knowledge by reference of books in libraries, one may be interested in referring to e-books or downloading data.”

While batting for more freedom for students above 18 years, it is then rightly articulated in para 12 that, “By compelling one that she should utilise the books in the library during the study time or that she should not access the technological means during a particular time or study time may not always yield positive results. 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. The schools in Kerala promotes digitalisation with smart class rooms and the modern technology has taken its place in all the fields even from primary section. Thus the usage of mobile phones in order to enable the students to have access to internet will only enhance the opportunities of students to acquire knowledge from all available sources based on which they can achieve excellence and enhance quality and standard of education.”

While quoting liberally from the landmark cases, it is then pointed out in para 15 that, “As found by the Apex Court in Charu Khurana v. Union of India (2015) 1 SCC 192, women still face all kinds of discrimination and prejudice and the days when women were treated as fragile, feeble, dependent and subordinate to men, should be a matter of history.” Similarly, it is then held in para 16 that, “In the judgment in Puttaswamy’s case (supra) the Apex Court held that right to privacy is held to be an intrinsic part of the right to life, personal liberty and dignity and hence a fundamental right under part III of the Constitution.”

Be it noted, para 18 then envisages that, “Though it is true that the Principal of the college is the supreme authority to enforce discipline as held by this Court in Manu Wilson’s case, Sojan Francis’ case, Indulekha Joseph’s case (supra) and that there cannot be any dispute that rules and regulations lawfully framed are to be obeyed by the students and that teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education for maintaining excellence of education, the rules should be modified in tune with the modernisation of the technology so as to enable the students to acquire knowledge from all available sources. It would be open to the authorities in the hostel to supervise whether any distraction or disturbance is caused to other students on account of usage of mobile phone or take action when any such complaint is received. 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.”

What’s more, it is then eruditely pointed out in para 19 that, “It is pertinent to note that the learned counsel for the college vehemently argued that in the absence of any challenge to the rules and regulations, the petitioner cannot be heard to challenge the action taken in accordance with the rules. The learned counsel for the college also argued that in the light of the judgment of the Full Bench of this Court in Pavitran VKM V. State of Kerala & others 2009(4) KLT 20: 2009(4) KHC 4, the rules and regulations of the hostel will stand as long as it is not set aside. But in this case the rule was that the mobile phones shall not be used in the hostel. Therefore, what remains is only the decision/instruction restricting/banning the use of mobile phone from 6 pm to 10 pm and the direction to surrender the mobile phone to the warden. When it is already found that such an action infringes the fundamental freedom as well as privacy and will adversely affect the future and career of students who want to acquire knowledge and compete with their peers, such instruction or restriction cannot be permitted to be enforced.”

To put it succinctly, para 20 then states unambiguously that, “While enforcing discipline it is necessary to see the positive aspects of the mobile phone also. As held by this Court in the judgment in Anjitha K. Jose’ case (supra), the restriction should have connection with the discipline and when there is nothing to show that there was any act of indiscipline on account of the usage of mobile phone by the petitioner, that cannot stand. The fact that no other student objected to the restriction or that all others obeyed the instructions will not make a restriction legal if it is otherwise illegal. 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.”

While adding a word of advice for parents, hostel authorities and students, para 21 then states that, “The parents as well as the authorities of the hostel have to consider the fact that almost all the undergraduate students staying in the hostel have attained majority. They have joined the course after passing one or two public examinations. The students in that age group are expected to be conscious of their duty to study properly in exercise of their right to education. The manner in which as well as the time during which each person can study well, vary from person to person.”

More importantly, Justice PV Asha who delivered this landmark judgment then categorically observes in para 22 that, “I am of the view that what is required is a counseling for the students, as well as parents in the colleges. The students in the hostels should be given counseling 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 consequences 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.”

While spelling out the boundaries for enforcement of rules and discipline, it is then observed in para 24 that, “Regarding the contention of the respondent that any inmate is bound to abide by the rules and regulations or else she is free to leave the hostel, it is pertinent to note that rules and regulations require reforms to cope up with the advancement of technology and the importance of modern technology in day to day life. As per the University Regulations as well as the UGC Regulations, the college is bound to run a hostel to enable the students to reside near the college in order to enable them to have sufficient time to concentrate in their studies. Therefore, the hostel authorities are expected to enforce only those rules and regulations for enforcing discipline. Enforcement of discipline shall not be by blocking the ways and means of the students to acquire knowledge.”

Finally, it is then held in the last para 25 that, “In view of the aforesaid reasons, I am of the view that imposing of such restrictions is unreasonable and therefore the respondent shall re-admit the petitioner in the hostel without any further delay. It is made clear that the petitioner or her parent shall not do any act in a manner humiliating any of the respondents or any other teacher or warden or Matron in the hostel/college. The petitioner or any other inmate shall also see that no disturbance is caused to others by usage of mobile phone in the hostel. The Writ Petition is allowed to the above extent.”

In the ultimate analysis, what can be easily inferred from the above foregoing discussion is that the Kerala High Court has laid down in no uncertain terms that right to access internet is part of the right to privacy under Article 21 of the Constitution of India and also the right to education. We all know fully well how crucial internet is to acquire invaluable information about anything which cannot be acquired from other sources so easily which makes it all the more important!

It also cannot be denied that even the UN General Assembly had declared right to internet to be a human right in 2014. Even the Kerala Finance Minister Dr Thomas Issac in 2017 in his budget speech had recognized right to internet as a human right and had disclosed that efforts were being made to make internet accessible to all. The only restriction that can be imposed is that the students using mobile phones should not cause disturbance to other students! This was made clear by the Kerala High Court also in this commendable judgments and all students must adhere to it!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.