A Kerala court ruling could have a significant bearing on promoting innovation and open access to knowledge and civil liberties for citizens in the digital world.
The Kerala High Court in a monumental decision has held Right to Internet Access as a fundamental right and stated that ‘the right to have access to the Internet becomes part of the right to education as well as the right to privacy under Article 2l of the Constitution of India’. The petition was filed by Faheema Shirin, a hostel resident of Sree Narayana College, Chelanur, Kozhikode against the discriminatory girls’ hostel rules, specifically banning use of mobile phones from 6 PM to 10 PM which restricted them from accessing the internet. The petitioner was subsequently arbitrarily expelled from the hostel on protesting against the rules.
SFLC.in (Software Freedom Law Centre, India) in its continuous pursuit towards protecting internet freedoms intervened in the matter for the petitioner. In the counter-affidavit filed, SFLC.in brought to the Court’s notice the arbitrary, unlawful and unconstitutional restrictions imposed on the female residents by the hostel authorities, specifically violations of Articles 14, 19(1)(a) and 21 which provide rights to equality, information and personal liberty. Restricting use of digital devices hampered the female students’ ‘ability to access and use digital resources to learn and communicate’, thus putting them at a serious disadvantage compared to their male counterparts.
Further, the invasive practices of confiscating the digital devices of students was a violation of their Right to Privacy which was acknowledged as a fundamental right by the Supreme Court in J. K.S. Puttaswamy v. Union of India. Further, various state and central government policies and initiatives to digitise educational resources like SWAYAM platform were also presented.
The Honourable single judge bench of Justice PV Asha giving due consideration to these arguments found hostel authorities acting unreasonably and held that the ‘enforcement of discipline shall not be [implemented] by blocking the ways and means of the students to acquire knowledge’. The Court, while discussing the benefits of internet access by using mobile phones, stated that ‘apart from the facilities to read e-news, e-books, etc. one can participate in online courses also sitting at home or at the hostel. lt is pointed out that there are courses under SWAYAM (are) recognized by the UGC, which students can undergo even when they are undergoing regular studies at college.’
Further, on women empowerment and anti-discriminatory practices, the Court relied on UN General Assembly Resolution dated 24th June, 2013; the Beijing Declaration and Apex Court Judgment in Vishaka v. State of Rajasthan & Ors. The Court vociferously stated that while referring to attempts to discipline students ‘…who attained majority and those who want to enforce discipline as their guardian angels should be conscious of the need of the hour to get the children armed with the modem technique(s)’. Finally, the Court directed the respondent hostel to re-admit the petitioner without further delay.
The decision has a significant bearing on promoting innovation and open access to knowledge and civil liberties for citizens in the digital world.
