Right to access Internet

Disha Agarwal | ICFAI Hyderabad | 11th June 2020

Faheema Shirin V State of Kerala

Introduction

With the innumerable uses of internet, internet has become a crucial aspect in all the sectors. Right to internet is considered as a positive right, It can be explained in 2 ways: Firstly the right to have access to the data over internet and restrictions w.r.t it. Secondly, infrastructure and technology available to access the internet. Considering the modern era, Digital India it is which makes the status of the right to access internet an essential attribute. Right to access internet forms part of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution providing a platform for millions and millions of people to voice out their opinions. It is also considered to be a part of Article 19(1)(g) – freedom to practice any occupation, profession, trade, business wherein millions of online markets have come up like Amazon, Flipkart etc. It is also considered to be an intrinsic part of right to privacy under Article 21 as reaffirmed in the Kerala High Court judgment and right to education under Article 21A^[1].

With the internet becoming such a crucial part of our lives and with the judgment of the Kerala High court recognizing it as a fundamental right, the Government will have to review its decisions of internet shutdowns. India is considered to be the country with the biggest democracy experiencing such large number of internet shut downs, In 2016 India witnessed largest number of internet shutdowns^[2], it is pertinent to note that such shut downs have economic ramifications too. In the present scenario, the Covid-19 pandemic has illustrated the importance of digital networks, service providers to the entire world. The biggest economies of the world UK, USA were heavily relying on digital service providers. In the current backdrop, it is very important for the government to judicially review their decisions of internet shut downs.

Faheema Shirin V State of Kerala:

Facts:

The petitioner (Faheema Shirin) is a student of Sree Narayanaguru College (affiliated to University of Calicut) residing in the hostel accommodation. The present petition is filed by her due to the new rules imposed by the hostel authorities restricting the use of mobile phones from 10:00 pm to 6:00 am and then from 6pm to 10pm, while the use of laptop by undergraduates was prohibited within the hostel premises. The petitioner complained at various hierarchal levels including the Deputy Warden and the Principal regarding the unreasonable restriction implemented only in the girls’ hostel. Subsequently, the Petitioner was asked to vacate the hostel premises immediately due to her failure to abide by the rules. It is to be noted that the said restrictions were imposed upon the request of parents which was decided in a meeting. The petitioner states that neither she nor her parents were aware of such a meeting and did not receive any such notification in this regard. 

Issues:

• Whether the restriction on the use of internet amounts to a violation of the fundamental rights guaranteed under Article 14 & 21 of the Constitution.
• Whether the college authorities’ have any obligation towards the residence of students, if so is the decision of the college authorities to expel the petitioner justified.

Petitioner’s contentions:

• The Petitioner submits that the restrictions imposed were discriminatory in nature as they were imposed only in the girls’ hostel which is in direct violation of Clause 5 of Ext.P8 guidelines issued by UGC and UGC (Promotion of Equity in Higher Educational Institutions) Regulations, 2012 which forbids discrimination on the basis of gender and obligates the college authorities to take all the necessary measures to uphold the interests of the students without any discrimination.
• It is also stated that the restrictions imposed are arbitrary and in violation of 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 is under an obligation to prevent all forms of discrimination against women.
• The Petitioner also states that the restrictions are in contrary to the States’ measures such as QR code learning method, Digital Kerala Vision- making internet accessible to all the citizens.
• The Petitioner contends that the rules imposed are in violation of the freedom of speech and expression which includes right to access internet guaranteed under Article 19(1) (a) and does not amount to reasonable restriction under Article 19(2). It is also contended that, Petitioner, being an adult under the Indian Majority Act, 1875 such restrictions on the use of her mobile phone and internet amount to violation of Right to privacy guaranteed under Article 21 of the constitution. It is also stated that the rules restrict her quality and access to education thereby violating right to education under Article 21 of the Constitution. 
• Therefore, the Petitioner submits that the rules are arbitrary, discriminatory and also her expulsion from the college in toto in illegal.

Respondent’s contentions:

• It is contended by the Respondent that the restrictions were imposed upon the request of the parents due to exorbitant use of cell phones affecting their studies and day-to-day activities, it is also stated that “the authorities of the college as well as the hostel are entitled to take suitable measure to enforce discipline”. ^[3]
• It is also submitted that petitioner and her parents signed an application abiding by the rules, policies of the hostel during her accommodation at the hostel. It is to be noted that the rules of the college strictly prohibited usage of mobile phones in college and with regard to hostel, there were only partial restrictions. It is also clarified that the restrictions are also imposed in the boys hostel also but with different set of timings.
• The Respondent submits that petitioner was the only one having problem with respect to rules imposed and rest all the students were in conformity with the established rules. It is also stated the Petitioner and her parents were extremely arrogant, disrespectful during the whole scene with the college and hostel authorities.
• It is also stated that with respect to limited access to education, the College is providing with library containing 30,000 books of all kinds. Also, the restriction is only with respect to mobile phones, laptops can be accessed.

Judgment:

• The Court examined the expulsion of the petitioner with respect to Chapter 7 of the Calicut University First Ordinances, 1978. Clauses 3,4,7,17, cast an obligation on the College authorities to provide accommodation for the students not staying with their  parents and guardians. It also casts a duty on them to maintain records regarding accommodation and to manage the college hostels. Therefore, Court was of the view that the students have right to accommodation in the hostel and the College authorities have an obligation to provide the necessary accommodation.
• The Court also came to a conclusion looking at the Digitalization project undertaken by the Kerala department and the innumerable uses of the internet in enhancing education cannot be overlooked and emphasized on the importance of usage of mobile phones, as laptops cannot be afforded by all.
• The Court also highlighted the submission of the petitioner, Resolution 23/2 adopted by the Human Rights Council in the 23rd session of United Nation’s general assembly stating the role of freedom of opinion and expression in women’s empowerment. It also highlighted Council resolution 20/8 on promotion of protection and enjoyment of human rights on the Internet. While asserting right to access internet as a fundamental right, the Hon’ble Court emphasized on various landmark judgments Vishaka & Ors. v.State of Rajasthan & Ors^[4] regarding the importance of international conventions in light of the fundamental rights in the absence of domestic law. Therefore, the Court concluded that “the right to have access to Internet becomes the part of right to education as well as right to privacy (It is fundamental right in the Constitution^[5]) under Article 21 of the Constitution of India”.
• The Court also stated the in light of the S.Rengarajan and others v. P. Jagjivan Ram^[6] that “the rules should be in tune with the modernization” so as to provide a platform for the students to acquire best quality of education from all available sources. The Court also stated that no doubt college authorities have an obligation to enforce discipline and they are foster parents of children but total restriction is unwarranted.
• The Court also stated that the behavior of the parents showing disrespect towards the college authorities is vehemently opposed and should be restrained. Therefore, in toto the Court ordered immediate re-admittance of the petitioner and struck down the restrictions as in violation to Article 19(1),(2) and Article 21.

^[1] P.A Inamdar V State of Maharastra (2004) 8 SCC 139

^[2] https://www.huffingtonpost.in/2017/03/21/india-had-the-highest-number-of-internet-shut-downs-in-2016_a_21903918/

^[3] KLT 582, Unniraja v. Principal Medical College ILR 1983 (2) Ker.754;  Indulekha Joseph v. VC M G University & Ors. ILR 2008(3) Ker 346

^[4] AIR 1997 SC 3011

^[5] K.S Puttaswamy and Anr. v. Union of India & Ors. (2017) 10 SCC 1

^[6] (1989) 2 SCC 574