The Fundamental Right to Internet - Examining the ‘Faheema Shirin’ Judgement

Introduction

One of the indispensable facets of the freedom of speech and expression is the communication of information through the Internet. But, today the roots of the internet have firmed itself in every sphere of once life. Education, being one such realm, in which without the internet, the avenues would be far less accessible and unachievable, in its holistic sense. The recent judgement of the Kerala High Court, declaring ‘right to internet’ as a fundamental right in itself, demands astute attention and thus, forms the underlying infrastructure of this case comment. The authors have scrutinized the judgement of the Hon’ble HC on the anvil of Constitution of India and analyzed the rationale as well as ramifications of the judgement. “The Internet is so embedded in the lives of so many people, acting as the gateway for information exchange, that to deny access to everyone in the world is a breach of human rights.”

The United Nations declared  half a decade ago that denial of the ‘right to access internet’ is a breach of an inalienable human right. This has acquired paramount significance in the debate between the State’s control of the Internet citing National Security as the concern, in the modern times and the rising utilitarian demand for ‘surveillance free Internet’.

The Indian jurisprudence, as early as in the 1960s, in the case of Sakal Papers v UOI,recognised the instrumental value of speech: that access to the news and the media’s role in facilitating the distribution of information and knowledge played a direct role in the promotion of democracy. The information published on the Internet was protected with the wall of Freedom of Speech and Expression, guaranteed as a fundamental right by the Constitution of India, yet the ‘right to access internet’ as a right in itself was not held as a substantive right.

In this backdrop, the decision of the Kerala High Court in the case of Faheema Shirin v State of Kerala, delivered in the latter half of the 21stCentury, is both transforming and revolutionary with respect to the ‘Rights’ jurisprudence of Indian legal system.

Facts of the case

Faheema Shirin, the petitioner in this case, filed the writ petition after being expelled from the hostel by the college administration for not abiding by the rule which restricted usage of mobile phone between 6 p.m. to 10 p.m. inside the hostel. The said rule was notified after receiving complaints from parents regarding the excessive usage of mobile phones in the hostel for women. 

After the petitioner refused to sign in writing that she would not stand by the restriction imposed, a direction was given to her to vacate the hostel. Subsequently, when the petitioner reached the hostel to vacate her room, it was seen locked and the hostel authorities did not allow her to take her belongings.

Issues framed by the court

The following were the issues framed by the court while hearing the petition:

1. Whether a student has a right to stay in a hostel and if the college has any obligation to provide housing for students living far away from home?

2. Whether the restrictions imposed by the hostel authorities on the use of mobile phones while enforcing discipline infringes the fundamental rights of a person, even assuming that such modification was brought on the request of parents?

3. Whether the restrictions imposed as a disciplinary measure was ‘reasonable’ enough to curb the fundamental rights of the students?

While framing issues with regard to the ‘right to internet’, the court also deliberated upon the above-mentioned questions.

Arguments Advanced (Petitioner) 

The notification restricting the use of mobile phones in the hostel during a certain period of time, and only in the women’s hostel was, according to the petitioner was in violation of the following provisions of law:

1. It was in violation of the Clause 5 of Ext.P8 University Grants Commission’s guidelines which prohibit gender discrimination in the college vicinity.

2. It was in 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 theUniversal Declaration of Human Rights.

3. It was in violation of Right to Education, as an intrinsic part of Right to life and personal liberty as she was denied her right to acquire knowledge through the internet and that by prohibiting the use of mobile phones, she was deprived of the access to the source of knowledge to her detriment which will affect the quality of her education.

4. It was in violation of the Right to privacy, guaranteed under Article 21 of the Constitution of India. Being an adult, the petitioner claimed that nobody had any authority to interfere with her freedom to use the mobile phones. It was argued that the forceful seizure of mobile devices has invaded the right of privacy of the hostel inmates.

5. In addition, it was also contended that the right to access the 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. 

Arguments Advanced (Respondents)

The major arguments advanced by the side of the respondents, asserting why the petitioner can’t refuse to abide by the disciplinary rules are as follows:

1. It was contended that, as per Rule 14 of the Rules , usage of mobile phone is strictly prohibited in the college and hostel. It was stated that the petitioner was admitted in the hostel based on Ext.R4(b), in which she, along with her father had signed agreeing to abide by the rules of the hostel and to obey the directions of the hostel authorities.

2. The respondents contended that the restrictions imposed on the use of mobile phones was not ‘unreasonable’ as the college is having a full-fledged library with more than 30,000 books which the students can utilize and there was no complete ban, but only a restriction during the study hour, i.e. from 6 p.m. to 10 p.m.

3. It was also contended that that ‘supreme authority’ to control and enforce discipline in an educational institution is the head of the institution; the authorities of the college as well as the hostel are entitled to take suitable measure to maintain discipline and it is the duty of the members of the teaching staff to take appropriate measures to achieve excellence in education. Such restriction was therefore, not to curtail any of the fundamental rights, but done to protect the interest of the students.

Judgement of the Court and Legal Analysis

The Honourable High Court of Kerala in this case, after hearing both the parties, held that the restrictions imposed on the students by the college authority by limiting the usage of the mobile phones under the set circumstances was nowhere justified in the eyes of law. The restriction enacted by the college was an ‘unreasonable’ and ‘unwarranted’ infringement of the right to education, right to privacy and the freedom of speech and expression, all protected under Part III of the Constitution of India. Moreover, the court moved a step ahead and recognised the right to access the internet, as a substantive right in itself.

In the generation of prevailing virtual schooling, the duty to comply with the restriction on utilization of internetsolely via smart phones was illegal and the courtroom noted that:

“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.”

The court held that the Right to Internet is a fundamental right and nobody should be deprived of his right by some unreasonable restrictions, even if imposed upon the request of parents.

In the first instance, the court examined the question, whether a student has a right to stay in a hostel and whether the college has any obligation to permit a student to stay in the hostel. The court highlighted the provisions of the Chapter 7 of Calicut University First Ordinances, 1978which provides that all students who do not reside with their parents or guardians have the right to reside in the residences maintained by the college/university. The Court established that the college is under an obligation to provide housing while the students have a right to stay in the hostels subject to the reasonable disciplinary controls of the Hostel Warden and Matrons. The court judicially pointed out the right of the petitioner to reside in the college premise. Alongside, the court also imposed an implied duty to the college authority to act as a local guardian who can cater all the rudiments of the student, with certain reasonable obligations.

The Court then scrutinized the question, whether the restriction prevented the students from “acquiring knowledge” during the study hour from their cell phones. Additionally, it also considered the question on restrictions that could effect in the infringement of the fundamental right of education. The Court held that the petitioner had attained the age of majority and was autonomous to make a decision regarding ‘what is right and what is wrong for her’. It vowed that 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 court pronounced the benefits of online learning and mobile phones, and emphasised on the point of “group discussion, exchange of ideas, downloading of data or e-books as well partaking in online courses such as the SWAYAM program of UGC” which helps in effective realisation of the Standard and quality education. It held that: “The college authority should not neglect the boons of digitaleducation in the aspect of higher studies.”Thus, the students should be allowed to use their mobile phones to acquire knowledge from all available sources in order to achieve excellence and enhance the quality and standard of education.

The court also analysed the question of whether the restriction on internet and mobile use affects the right to acquire knowledge by the students. The Court noted down the provisions of United Nations Resolution 26/13 that accentuated “on the promotion, protection and enjoyment of human life on the internet”. The United Nations Human Rights Council has also specified that the right to the internet is a fundamental right and a mechanism for ensuring the right to education. The Resolution emphasized on the role of freedom of opinion and expression in women’s empowerment.

The Court heavily relying on the case of Vishaka v. State of Rajasthan &Ors, observed that the international conventions and norms are to be read into the 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 in the light of Article 51(c) which states that the state shall endeavour to foster respect for international law and treaty obligation in the dealing to organised people with one another and Article 253 which gives power to the Parliament to make any law for giving effect to the  international agreement. Accordingly, the Court concluded that “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.” Citing the Vishaka judgement of the Supreme Court, the Kerala High Court appropriately reverences the persuasive essence of the International Statutes and conventions in regard with the Indian perspective.

Moreover, in the case of Sabu Mathew George v. Union of India and Ors, the 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” that the Internet offers on the click of a button. In Furtherance, the United Nations General Assembly Regulations also encouragesthe state to promote digital literacy to facilitate access to the information provided on the internet. With the help of Sabu Mathews, the court put the reliance on the concept of right to information, where the internet stands as an indispensable medium to provide a suitable platform, in order to shape an informed opinion and voice.

The Court also examined the restrictions which were imposed only in the women’s hostel and held that it perpetuated discrimination based on gender. Referring to the case of Charu Khurana v. Union of India, the court reiterated that women still face all kinds of discrimination and prejudice and gone are the days when women were treated as fragile, feeble, dependent and subordinate to men, should be a matter of history. While referring to the case of CharuKhuana, the court promoted and emphasized on the notion of gender equality. Through this, the court tried to strike down the gender biased norms and frowned upon the modern paternalism.

The Court also stated that the UGC (Promotion of Equity in Higher Educational Institutions) Regulations, 2012 mandates the college authorities to take appropriate measures to safeguard the interests of the students without subjecting them to discrimination based on gender, caste, creed, religion, language etc. Therefore, it held that the restrictions are arbitrary as it impairs the quality of education accessible to female students and it hampers their potential, subjecting them to unwarranted gender discrimination. Further, it accentuates on the decision of the Apex court in the case of Justice K.S. Puttaswamy v. Union of India &Orsand repeated that the right to privacy is an intrinsic part of the right to life, personal liberty and dignity and hence a fundamental right under Part III of the Constitution. While emphasizing on the case of Justice K.S. Puttaswamy, the court delineatesthe notion of privacy as an individual right with respect to the current scenario. This would help the college authorities in providing a free hand to oversee and enquire any distraction or disturbance brought on to different college students because of the smart phone. Subsequently, it would deem the college authorities to take an appropriate action when one of these complaints was brought up in derogation with the right to privacy.

The Supreme Court of India in the famous case of Anuradha Bhasin v. Union of India, heard a petition filed by the editor of the Kashmir Times Srinagar Edition, M.s Anuradha Bhasin over the prolonged lockdown imposed in the Kashmir valley by the Union Government after the abrogation of Article 370. The petitioner in this case had argued that the protracted internet shut down as well as movement restrictions (hereafter “restrictions”) limited the ability of journalists to travel and to freely publish. The Supreme court in the judgement stated that “expressing one’s views or conducting one’s business through the internet are protected under Articles 19(1)(a) and 19(1)(g) of the Constitution respectively” and held that the Internet is an indispensable medium to exercise Fundamental Rights.However, considering other relevant factors, it did not declare 158day communication shut down as unconstitutional or directed the government to restore all telecom services in Kashmir. The Court, however, did not go as far as to declare the right to access the internet as a fundamental right because none of the parties to the case made that argument.

Finally, joining the dots, the Court ordered petitioner’s immediate re-admittance to the Hostel and mandated the college authority to provide the students with the digital access to the online education. 

The Way Forward:

In the words of the great American Economist, Milton Friedman, the Internet is the ‘most effective’ instrument we have for globalisation. It has helped us to transform the entire world into a ‘global village’. In the light of the increasing users and increasing benefits to all cross- sections of society, the recognition of ‘Right to access Internet’ as a substantive right in itself by the Hon’ble High Court of Kerala, is a welcome and much needed step.

The Constitution of India does not expressly provide for the ‘Right to access to Internet’, nor has the Union or any of the State government passed any legislation to confer the said right. In this backdrop, the approach of the Court was to fill the legislative void by reading the International convention and obligations into the fundamental rights, as provided under the Constitution. In doing so, the High court’s transformative judgement has helped our Judiciary to take a leap forward in the ‘Rights’ jurisprudence’. 

The opinions/analysis expressed in this blog are those of the author. They do not purport to reflect the opinions or views of the SCLHR or its members.

Faheema Shirin v State of Kerala, AIR (2020) Ker 35.

United Nations, available on https://www.un.org/press/en/2012/gashc4051.doc.htm.

Sakal Papers v Union of India, AIR 1962 SC 305.

Chapter 7 of Calicut University First Ordinances, 1978, available on https://www.latestlaws.com/wp-content/uploads/2015/07/Calicut-University-Act-1975.pdf.

Vishaka v. State of Rajasthan & Ors.,(1997) 6 SCC 241.

Sabu Mathew George v. Union of India and Ors.,(2018) 3 SCC 229.

Charu Khurana v. Union of India,(2015) 1 SCC 192.

Justice K.S. Puttaswamy v. Union of India & Ors,(2017) 10 SCC 1.

Anuradha Bhasin v. Union of India,(2020) 1 MLJ 574.