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Case Reviews, The Law

Fahima Shirin R.K. V. State of Kerala & Ors.

The right to access the internet is a fundamental right forming part of the right to privacy under Article 21 of the Constitution of India.

By: Shivani Kharai, 4th year BBA LL.B (Hons), CMR University, School of Legal Studies, Bangalore.

CITATION: Writ Petition(C) No.19716 OF 2019 (L)

BENCH: The Honourable Smt. Justice P.V. Asha

COURT: The High Court of Kerala

PETITIONER: Faheema Shirin R.K

RESPONDENTS: State of Kerala, University of Calicut, University Grants Commission, Principal of Sree Narayaguru College and Deputy Warden and Matron of the Women’s Hostel.

FACTS OF THE CASE

The petitioner Faheema Shirin who was an 18-year-old student at Sree Narayaguru College which is affiliated to the University of Calicut,

staying in the women’s hostel run by the college. The hostel implemented new rules in the hostel which restricted the use of the internet in the hostel between the time duration from 10:00 pm to 6:00 am and then from 6:00 pm to 10:00 pm and the use of a laptop by undergraduates student was prohibited.

On receiving the notice of the new rule, Shirin complained to the authorities about the restrictions regarding the usage of mobile phones. When her efforts rebuffed, she took the matter to the principal with a request to remove the restrictions.

Thereupon, Shirin was asked to call her parents for her resistance in abiding the hostel rules. They further added that if Shirin did not comply with the rules and regulations regarding the usage of mobile phones then she will have to vacate the hostel immediately and all the students residing in the hostel were asked to sign a document stating their willingness to comply with restrictions.

Shirin was served a notice to vacate the hostel immediately and just after she vacated the hostel, the door was locked and she was not allowed to take her belongings.

ISSUES:

  • Whether the restriction imposed by the hostel regarding the use of mobile phones while enforcing discipline has infringed the Fundamental rights guaranteed by the Constitution of India of the petitioner.

CONTENTIONS:

RESPONDENT

The change in the duration of restriction regarding the usage of mobile phones was imposed based on the request of the parents. The petitioner took admission in the hostel by signing the application along with her parents agreeing to obey the rules and regulations of the hostel.

  • According to the warden, the college is having a full-fledged library that the students can utilize, and therefore acquiring knowledge through the internet alone between 6:00 p.m and 10:00 p.m cannot be said to be an unreasonable restriction. 
  • The Principal stated that there were no restrictions on the use of laptops and that Shirin was the only student to complain.

The Deputy Warden of the Hostel stated that she felt humiliated by Shirin’s father who criticized her harshly for banning mobile phones in the present age in presence of students, parents, and teachers.

PETITIONER

  • Shirin contended that mobile and Internet were basic necessities needed to help a student study and develop potential.
  • The restriction was discriminatory as it was only imposed in the Girls hostel which violates Clause 5 of the Guidelines issued by UGC which prohibits gender discrimination in colleges and universities.
  • The right to access the internet formed a part of Freedom of Speech and Expression as guaranteed by Art 19(1)(a) of the Constitution of India and the restriction of the use of mobile phones, in this case, does not fall under the ambit of reasonable restrictions as under Art 19(2).

Shirin contended that she has attained the age of majority as under the Indian Majority Act, 1875, the Hostel has no right to interfere with her right to use her mobile phone as it infringes her Right to Privacy as guaranteed by Art 21 of the Constitution of India.

JUDGMENT:

The High Court of Kerala held that a restriction imposed on the use of mobile phones in a women’s hostel was an unreasonable infringement of the right to access the internet, the right to privacy, and the right to education. 

Though the principal of the college is indeed the authority and the rules and regulations imposed by the authority should be followed by the students but the rules should be modified in tune with the modernization of the technology to enable the students in their pursuit of education to acquire knowledge.

It would be fair when the college authorities take any action when any complaint is received regarding the disturbance and distraction caused by mobile phones. The total restriction on its use is unwarranted. 

The Court ordered the College to modernize the policies so they do not discriminate based on gender access to educational resources.

Relying on Vishaka & Ors v. State of Rajasthan & Ors, the Court used the judgment 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 Articles 51(c) and 253 of the Constitution of India.

“The Court concluded that “the right to have access to the Internet becomes the part of the right to education as well as the right to privacy under Article 21 of the Constitution of India.”

COMMENTS:

The judgment holds a significant bearing on promoting innovation, creativity, and open access to knowledge and civil liberties for citizens in the digital world. This is the era of virtual reality and the right to the internet is everyone’s fundamental right. The Internet has created a major change in society due to its unique feature of connectivity; Even though there are benefits, it still has its flaws. The court has widened the scope of the Articles and had led towards the interpretation of the Fundamental Rights guaranteed by the Constitution of India.

REFERENCES:

1. Access to the Internet is a basic right, says Kerala High Court, THE HINDU, September 20. 2019.

2. Samanwaya Rautray, Access to internet fundamental right: Kerala High Court, THE ECONOMICS TIMES, (September 19, 2019, 10:57 p.m), https://economictimes.indiatimes.com/news/politics-and-nation/access-to-internet-fundamental-right-kerala-high-court/articleshow/71208025.cms?from=mdr

3. Vishaka & Ors v. State of Rajasthan & Ors, AIR 1997 SC 3011.

4. Damini Mathur, Faheema Shirin vs. the State of Kerala, Law Time journal,(January 22, 2020), http://lawtimesjournal.in/faheema-shirin-v-state-of-kerala/

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