Blog“Internet Access for Education: A Fundamental Right”

nls4 weeks ago9715 min

FAHEEMA SHIRIN R.K. vs. STATE OF KERALA & ORS. [1]

Rohith Kamath and Parikshit Chaturvedi

Introduction-

In the present era of enhanced digital use, with internet usage moving beyond the urban milieu and penetrating the rural belts of the nation, thus bridging the urban-rural digital divide, the estimated number of internet users in India is set to rise to an estimated 290 million by the end of 2019.[2] Much of this can be attributed to efforts of the Government in popularizing its e-Governance drive through its Digital India Programme spearheaded by the Ministry of Electronics and Information Technology and the availability of cheap data plans coupled with increased internet bandwidth. In the present times that are witnessing India’s digital awakening, to what extent, if at all can restrictions be imposed on the use of internet in public institutions or private spaces? This was a question raised in a matter before the Kerala High Court, by a college student who claimed that her right to life and personal liberty was infringed by her College Authority, where restrictions were placed on the use of mobile phones by students in the hostel during designated hours each day. The Kerala High Court took note of the advancement of technology and the growing importance of modern technology in day to day life, and held that the right to have access to Internet becomes a part of the right to education as well as right to privacy under Article 21 of the Constitution of India.

Background-

This matter was filed before the Hon’ble High Court of Kerala by a female college student in Kozhizode, Kerala who was a resident in the hostel accommodation of the college. The rules of the college specified that the inmates of the hostel were prohibited to use mobile phones between 6 pm and 10 pm. It was submitted that despite repeated requests by the petitioner along with other students to the administrative authorities on the inconvenience caused due to this restriction, no action was taken. The petitioner then submitted a letter to the Principal in which she disagreed to abide by the restriction on the use of mobiles. On the refusal by the petitioner, she was directed to vacate the hostel within 12 hours and a notice was issued for the same. The respondent contended that this decision was taken after the recommendations of the parents in this behalf.  The Court’s attention was drawn to various International Conventions and expositions including those made by the Ministry of Education and other educational departments in understanding the evolution and necessity of internet towards confirming the enhanced quality of education. The Court went on to deliberate that the right to access the internet is a part of right to freedom of speech and expression and any restrictions thereto, must be reasonable. The respondents countered that the restrictions were made in good faith with an object to maintain discipline and for the benefit of the students so as to allow them to study during the said period, based on recommendations of the parents of the inmates.

 

Issues Raised before the Hon’ble Court-

  • 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?
  • Whether a student has got a right to stay in a hostel and whether the college has got any obligation to permit a student to stay in the hostel??
  • Whether the restriction on internet and mobile use affects the right to acquire knowledge by the students?
  • 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?

The Court held that students have the right to decide whether they would want to use the mobile phone for their benefits or misuse it. The Court observed that mobile phones which at one point in time were unheard of have become ubiquitous in the present times, and facilities which were initially available only on desktop computers and laptops are now available in handy and portable mobile phones, with applications, connectivity and access to e-resources and online databases. While the need to discipline students and the anxiety of their wards regarding the probable misuses of mobile phones cannot be negated, the Court noted that one cannot turn a blind eye to the innumerable advantages that the connectivity of the internet through mobile phones provide to students on various aspects of learning. Placing reliance on some of the earlier decisions rendered by Court, that unequivocally held that rules and regulations lawfully framed by college authorities must be obeyed, Court further observed that rules should be modified keeping with the needs of the time and the technological advancements to enable the students to acquire knowledge from all available sources. Authorities are well within their rights to ensure that no disturbance is caused to other students for the usage of mobile phones and act upon complaints when the same are received but a complete ban on their usage and seeking surrender of the phones during study hours is unwarranted and uncalled for. As the students have already attained majority and have joined the college after clearing various public examinations so they are well aware about the importance of studying. The Court found the restriction to be unreasonable and therefore held that no restriction can be imposed on the use of the mobile phones. Rather a restriction can be imposed on the use of mobile phones if they cause disturbance to other persons and infringes their right to privacy. Therefore the court ordered that the means of restriction are unreasonable and further ordered for the readmission of the petitioner in the hostel.

Analysis and Conclusion

The Hon’ble Court in confirming the right to access internet as a fundamental right available to every individual is justifiable and correct. The United Nation’s Human Rights Council has also specified that the right to internet is a fundamental right and an instrument for ensuring right to education. The Indian Government is also making all attempts to digitalise the nation by their upcoming projects which involve large scale implications of telemedicine facilities, virtual classrooms, solar power- based Wifi hotspots etc. in the rural areas.  And as observed in various judgement, the supreme authority or the decision making authority cannot impose unreasonable restrictions on the subordinates or in this case on the students to the access of this right. Considering the contention raised by the petitioner that the authorities had imposed such restrictions only in the girl’s hostel which resulted in gender discrimination, the Court relied on the Convention on Elimination of All Forms of Discrimination against Women, 1979, and important decisions of the Supreme Court including the oft cited Vishaka & Ors. v. State of Rajasthan & Ors.[3] and held that such restrictions cannot be permitted to be enforced since it would violate the fundamental freedom as well as privacy and would adversely affect the future and career of students who want to acquire knowledge and get a fair chance in competing with their peers. By discussing this aspect, the Court ensured that there is no discrimination based on gender. A report released by United Nations Children’s Fund (UNICEF) in 2017 reflected that only 29% of the total internet users in India are females,[4] but the scenario has changed slightly as according to the 21st Edition ICUBE report released in December, 2018, there is a visible balance between the internet usage by the male and female citizen of India, calculated on the basis of Average Duration spent of the internet. When internet usage is more gender balanced than ever before, placing ‘unreasonable restrictions’ on the usage of internet particularly on female students would be unjustifiable not only since it places restraints on the right to education and privacy, but also on the right against gender discrimination.

The Court rightly directed in this case that accessing internet by an individual is a fundamental right and is a factor that directly affects the right to education and access to knowledge, which is also protected under right to privacy which is a part and parcel of the right to life and personal liberty under Article 21.

[1] WP(C).No.19716 OF 2019(L) Decided on 19 September, 2019

[2] 21st edition ICUBE Digital adoption & usage trends, KantarIMRB, 2019 Highlights. Available at https://imrbint.com/images/common/ICUBE%E2%84%A2_2019_Highlights.pdf

[3] AIR 1997 SC 3011

[4] Children in a Digital World, The State of  the World’s Children 2017, UNICEF. Available at https://www.unicef.org/publications/files/SOWC_2017_ENG_WEB.pdf

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