Faheema Shirin v. State Of Kerala - Case Analysis

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Mobile phones and the access to internet which were unheard of once and later a luxury have now become part and parcel of the day to day life and even to an extent have become indispensable and unavoidable to survive with dignity and freedom. In a recent landmark and highly commendable judgment titled Faheema Shirin v. State of Kerala and others in WP (C) No. 19716 of 2019 (L) delivered by a single Bench of Justice PV Asha of the High Court of Kerala on September 19, 2019, it was held that right to have access to Internet is a part of right to education as well as right to privacy under Article 21 of the Constitution of India.

FACTS OF THE CASE

This extremely laudable judgment was a consequence of a writ petition filed by the petitioner, Faheema Shirin, a student of Sree Narayanaguru College, Kozhikode, who did not acquiesce to arbitrary and unreasonable new regulations at the college-run Hostel where she was staying, which altered the duration of the restrictions imposed on the use of mobile phones within the hostel from the earlier 10 pm – 6am to 6pm – 10pm, while the use of laptop by undergraduates was also prohibited in the hostel. While complaining against the inconvenient and non-feasible regulation, the college authorities informed that she would have to comply with the restrictions imposed or vacate the hostel immediately. Subsequently, all residents of the Hostel had to document their willingness to abide by the restriction; when all the inmates, but Shirin, submitted their willingness, a notice was issued to Shirin directing her to vacate the hostel within 12 hours. The loss of the housing made it impossible for Shirin to attend her college classes, since it would require her to travel nearly 150 km every day from home. After a few days leave when she arrived to vacate her room, the door was locked, and Hostel authorities did not allow her take her belongings. The respondents included the State of Kerala, The University of Calicut, The University Grants Commission (UGC), the Principal of Sree Narayanaguru College, and the Deputy Warden and Matron of the Women’s Hostel. It is stated that the change in duration of the restriction for use of mobile phone was brought to effect on the request of the parents.

ISSUES

  1. Whether the restrictions imposed by the Hostel on the use of mobile phones infringe the fundamental rights of the petitioner, even assuming that such alteration was brought about at the request from the parents of the inmates?
  2. Whether the restriction prevented the students from “acquiring knowledge” from their mobiles infringing the fundamental right to education?
  3. 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?

CONTENTIONS OF THE PETITIONER (Faheema Shirin)

The petitioner contended that such restrictions are imposed only in the girls’ hostel and therefore it amounts to discrimination based on gender, in violation of guidelines issued by UGC. The restrictions are arbitrary and impair access to quality education to female students hampering their growth and potential. It is also her case that denial of the right to acquire knowledge through internet and prohibition on the use of mobile phones, is a deprivation of the access to the source of knowledge detrimental to the quality of education available to women. Such 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 under which State parties are to take appropriate measures to prevent discrimination of all forms against women. 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 in a scenario when the Government has proclaimed steps for making internet accessible to all citizens recognizing the right to internet as a human right. The petitioner relied on catena of judgments of the Apex Court viz. Ministry of Information and Broadcasting v. Cricket Association of Bengal & Anr [1], Shreya Singhal v. Union of India[2] , N.D Jayal v. Union of India[3], PUCL v. Union of India[4], National Legal Services Authority v. Union of India[5] , Shafin Jahan v. Asokan K.M & Ors[6]. and the judgment of the Kerala high Court in Anjitha K. Jose & Anr. v. State of Kerala & Ors[7], arguing that the restrictions imposed as well as the expulsion consequent to it are illegal as it infringed her fundamental right to freedom and expression, right to privacy, right to education etc. The restrictions have invaded the fundamental right to privacy guaranteed under Article 21 of the Constitution of India. Being major nobody has any authority to interfere with her freedom to use the mobile phones. The forceful seizure of electronic devices has invaded the right of privacy of the hostel inmates. The 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.

CONTENTIONS OF THE RESPONDENTS

The Respondents vehemently argued that in the absence of any challenge to the rules and regulations, the petitioner cannot challenge the action taken in accordance with the rules. It was also argued that in the light of the judgment of the Full Bench of the Kerala High Court in Pavitran V.K. M v. State of Kerala & others[8], the rules and regulations of the hostel will stand as long as they are not set aside. They further contended that the rules had been framed to ensure discipline and avoid misuse of technology and the parents and students were strictly made to submit a declaration to the effect that they will abide by the rules of the college and anyone who acts to the contrary will be ejected.

JUDGMENT

The court noted that the usage of mobile phones to enable students to access the internet would only enhance their opportunities to acquire knowledge, as well as the quality of education. The court highlighted several benefits of the internet like to read news online; undergo online courses; interact, exchange ideas, and download e-books. A student who had attained majority should be given the freedom to choose their preferred mode of studies, provided it did not disturb others. The court also referred to the following international resolutions:

  1. Resolution 23/2, adopted by the Human Rights Council of the UN General Assembly on 24th June, 2013 on the role of freedom of opinion and expression in women’s empowerment, in the light of the Convention on the elimination of all forms of communication against women and all previous resolutions of the commission on human rights and on the right to freedom of opinion and expression, including council resolution 20/8 of 5 July, 2012 on the promotion of protection and enjoyment of human rights on the Internet, which called upon States to promote women’s freedom of opinion and expression online and off-line, as well as facilitate equal participation in access to and use of the internet;
  2. The resolution adopted by the UN General Assembly on 14th July, 2014, which emphasized that access to information on the internet created vast opportunities for affordable and inclusive education globally, thereby being an important instrument facilitating the promotion of right to education, and called upon States to promote and facilitate access to the internet and develop information and communication facilities and technologies in all countries and which can be an important role in facilitating the promotion of the right to education.

The court also relied upon:

  1. The landmark judgment *Vishaka & Ors v State of Rajasthan & Ors[9]**. u*pholding that in light of Article 51(c) and Article 253 of the Constitution of India as well as the *Beijing Statement of Principles of the Independence of the Judiciary,* international conventions and norms were to be read into fundamental rights guaranteed in the Constitution of India, in the absence of enacted domestic law occupying the fields when there is no inconsistency between them.

  2. The principles laid down in *Anuj Garj v. Hostel Association of India****[10]*, opining that the State should ensure that children were equipped with modern technologies to compete in the digital world.

  3. The landmark judgment on the right to privacy – *Justice Puttaswamy (Retd.) and Anr. v. Union of India & Ors[11]*****holding it to be an intrinsic part to right to life, personal liberty and dignity.

  4. The judgment of *S Rengarajan & Ors v P Jagjivan Ram****[12]*, recognizing that the State authorities should be responsive to societal changes and the prevailing climate, and any restrictions of fundamental rights could only be justified on the anvil of necessity.

Laying down the foundation on the aforementioned principles and precedents, the court held that the total restriction on the use of mobile phones and the direction to surrender it during certain hours was absolutely unwarranted**_._** The rules should be altered in tune with the modernised technology and shouldn’t undermine students’ access to myriad of educational resources. The hostel authorities would be at liberty 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. 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 rules and regulations which impair the said right of the students are untenable in the eyes of law. Enforcement of discipline could not block students’ means to acquire knowledge and the restriction should be in close proximity to ensuring discipline which was lacking in the instant case.Finally, the Court having found the restrictions to be unreasonable and untenable in the eyes of law, allowed the petition ordering Shirin’s immediate re-admission in the Hostelwhille giving a word of caution to Shirin and other residents to avoid disturbance by the use of mobile phones in the Hostel and Shirin’s parent to avoid doing anything that is humiliating to the college or Hostel authorities.

CRITICAL APPRAISAL AND CONCLUSION

The recognition of the right to access education and information through the internet and its elevation to the status of a fundamental right reflects the progressive outlook of the Indian courts and depicts that their judgments are in consonance with changing times. The expansive scope given to the freedom of expression by upholding international declarations that the right to access the internet is a fundamental freedom and is intrinsically linked to the right to education and the right to privacy. The Court, by reading international covenants into fundamental rights enshrined by the Constitution of India, strengthened India’s commitment to freedom of expression by treading on the path of international human rights law. The remarkable judgment draws the attention towards gender imbalance and inequality in access to internet and educational resources for their empowerment and advancement. Finally, the judgment also upholds the need to modernize policies and programs in tune with the digital age ensuring that the society takes full advantage of the opportunities technology presents for affordable and inclusive education. This decision may ultimately have a positive impact on promoting online-learning as an integral part of the right to education and will become a guiding light while expanding the ambit of Article 21 and ensuring right to access to internet as a corollary to the right to education.

Authored by: VANSHIKA SHARMA

[1] (1995) 2 SCC 161

[2] (2015)5 SCC 1

[3] (2004) 9 SCC 362

[4] (1997)1 SCC 301

[5] (2014) 5 SCC 438

[6] (2018)16 SCC 368

[7] 2019(2) KHC 220

[8] 2009(4) KLT 20

[9] AIR 1997 SC 3011

[10] (2008) 3 SCC 1

[11] (2017) 10 SCC 1

[12] (1989) 2 SCC 674

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