Right to access to Internet is an integral part of Right to Education & Privacy under Article 21 & is subjected to restrictions on free speech under Article 19(2) of the Indian Constitution

Harshit Sharma | Amity Law School, Madhya Pradesh | 4th January 2020

Faheema Shirin V/s. State of Kerala & Ors.  W.P. (C) No. 19716/2019 (L)

FACTS OF THE CASE

1. The instant matter was brought before the High Court vide this Writ petition by the petitioner, who was the 3^rdSemester B.A. Student of Sree Narayanaguru College, Kozhikode. 
2. It was 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.
3. It is also her case that she is denied her right to acquire knowledge through internet and that by prohibiting the use of mobile phone, she is deprived of the access to the source of knowledge to her detriment which will affect the quality of her education. It is claimed that 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.
4. It is stated that the change in duration of the restriction for use of mobile phone was stated to be affected based on the request of some of the parents. According to the petitioner, she or her parents were never notified of any hostel meeting or PTA meeting before the implementation of the rules.
5. Furthermore, the restriction purportedly applied to girls hostel only and thus, also discriminating on the basis of Gender and sex, which clearly violated their Article 15, and Article 21 per se, with various International Obligations of India under various International Covenants/Agreements. 
6. Thus, the WP was preferred quoting that such restriction doesn’t fall under the category of Article 19(2) and pointedly violated Article 19, 15 and 21 of the Indian Constitution. 

ISSUES RAISED

1. 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? 
2. 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? 
3. Whether the measures furthered by the State in the form of legislative mandate, to augment the legitimate aim of protecting the interests of women are proportionate to the other bulk of well-settled gender norms such as autonomy, equality of opportunity, right to privacy, etc? 

RULING OF THE COURT/ THE COURT HELD THAT

The appeal was allowed in the favour of the Petitioner, observing and on laying down following conditions: 

1. “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.”
2. “…..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.” 
3. “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…..”
4. “I am of the view that what is required is a counselling for the students, as well as parents in the colleges. The students in the hostels should be given counselling 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 consequence of misuse as well as advantage of its proper use. 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….”