By Divyanshi Singh Choudhary ~ Symbiosis Law School, Hyderabad
- CITATION: WP(C).No.19716 OF 2019(L)
- COURT: THE HIGH COURT OF KERALA
- BENCH: THE HONOURABLE SMT. JUSTICE P.V. ASHA
- DATE OF JUDGEMENT: 19th SEPTEMBER, 2019
- PETITIONER: FAHEEMA SHIRIN R.K
- RESPONDENT: STATE OF KERALA AND OTHERS
Facts of the Case
In the present matter, a 3rd semester BA Student, aggrieved by her expulsion from the hostel, lodged this writ petition. She resided at the college hostel, which is an endorsed college associated with the University of Calicut. Hostel detainees were not authorized to use their cell phones in the hostel from 10 pm to 6 am, and undergraduate students were not authorized to use laptops in the hostel as well. Once more, the period of the cell phone usage limit has been modified from 6 p.m. toward a certain 10 p.m. The petitioner went to meet the Deputy Warden with other hostel inmates to clarify the inconveniences caused by the limitations to them, but she did not answer. Warden sent a What’s App message telling the hostel to be vacated by anyone who does not comply with regulations.
Thereupon, she confronted the Principal and sent a letter asking the constraints to be relaxed. A letter was subsequently received from her in writing to the effect that she was not prepared to comply with the new law limiting phone use between 6 p.m. Towards 10 p.m. Her parents were then expected to visit the Principal and told them that as she failed to comply with the rules, the petitioner would quit the hostel. They released a memo to her ordering her to instantly leave the hostel and held a meeting of the inmates of the hostel where students were notified of the measures undertaken against her and asked to offer their willingness to comply with the limitations in writing. She submitted a letter of leave because, since she had to drive 150 km every day, it was not possible to attend the classes. It was found locked when she reached the hostel to vacate the room, and the hostel administrators did not permit her to take her personal belongings.
Issues of the Instant Case
Whether the constraints imposed by the hostel management on the use of cell phones during disciplinary compliance violated the petitioner’s fundamental rights?
Arguments of the Parties
ARGUMENTS PUT FORTH BY THE COUNSEL OF THE PETITIONER:
- Before incorporating the mobile use restriction regulation, the petitioner or her parents were never informed of any hostel meeting or PTA meeting.
- This limitation is only enforced in the girls’ hostel, which leads to gender-based discrimination that has also breached UGC Clause 5. In the 2012 (Promotion of Equality in Higher Educational Institutions) Guidelines, the UGC mandates the college authorities to take effective steps to safeguard the interests of students without prejudice against them on the grounds of gender, caste, faith, language, etc.
- Additionally, the goal behind the implementation of such a constraint is to see that students use their study time on their own for study purposes. The respondents did not indicate whether the petitioner or any prisoner’s use of cell phones caused other inmates to be interrupted. Therefore, only to the point of defiance of an order does indiscipline come into the picture.
- When the state government considered the possibility of educational technologies even from the school level, such as the Department of Education, implemented the QR Code in textbooks to allow students to scan it and read the lessons and related subjects and watch the videos on their mobile smartphones or tablets, and then college authorities enforce such regulations. As this right is not given to her, she is deprived of accessibility to a source of information that also impacts the standard of education.
- UGC has also issued a guideline (Credit System for online learning courses through SWAYAM) recommending universities to specify courses where credits for SWAYAM courses can be shifted to students ‘ academic records. Consequently, it is indicated that such constraints would deprive students of their ability to access the SWAYAM platform. Owing to the non-availability of Wi-Fi facilities in the hostel, the internet is done predominantly via mobile phones.
- It is asserted that the right to access the internet forms part of the freedom of speech protected in compliance with article 19(1)(a) and that the limitations imposed do not fall within the appropriate limits laid down in Article 19(2) of the Constitution of India.
- Students who do not reside with their parents or guardian shall be allowed to reside in any of the hostels operated by the University or by the institutions affiliated to the University or in the hostels or lodgings recognized by the University in Clause 4, Ordinances of Calicut University ensuring residence for students in clause 7, and as such, according to the requirements, students have the right to reside in the syndicate-recognized college hostel/hostel and the college has the duty to provide lodging in the hostel to students who reside far away from their parents from the college.
- The petitioner also depends on the apex court’s judgment in Anuj Garj v. Hostel Association of India, Shreya Singhal v. Union of India, PUCL v. Union of India, and so on for the constraints placed and her deportation as a result of it being unconstitutional because it violated her constitutional right to freedom of expression, her right to privacy, her right to education and her right to education.
- It is therefore claimed that its constitutional right to privacy, guaranteed under Article 21 of the Constitution of India, has been breached by the controls. As an adult, no one has the right to interfere with their ability to use their cell phone. Modification of laws and turning off electric lights by 10 p.m. on the basis of parental concern Their right to freedom, their right to privacy, and the violation of their personal autonomy, as well as that of other prisoners, have been compromised.
ARGUMENTS PUT FORTH BY THE COUNSEL OF THE RESPONDENT:
- Based on the request of some of the parents, the adjustment in the period of the restriction for cell phone use was found to be impaired. The petitioner was admitted to the hostel on the basis of an application in which she signed an agreement with her father to comply with the rules of the hostel and to follow the directions of the hostel administration.
- A meeting took place on 19.06.2019 to receive concerns from parents about the inappropriate usage of cell phones in the women’s hostel, in which it was unanimously agreed to ban the use of mobile phones from 6 p.m. Towards 10 p.m. To ensure that students only use their study time for study purposes, the decision was conveyed to all hostel inmates by the appropriate Deputy Wardens.
- Furthermore, the father of the petitioner also notified the hostel warden that if his daughter used the cell phone, he seemed to have no problem. Warden’s complaint to the principal detailing the embarrassment she faced from the father of the petitioner; her father also came to college and yelled at the warden in front of students, parents, and other teachers accusing them of prohibiting cell phone use in the modern era, despite this warden taking no measure against him. They have indeed told them that if she is not able to abide by the guidelines, she can either choose to obey the directions or to abandon the hostel. At the time of the meeting, her parents were also there to enforce the ban enforcing the use of the cell phone where they were rudely behaving with the vice president. Also, they are not expected to object to the same if the applicant and her parents’ consent to cooperate with the directive.
- The college has a full-fledged library of more than 30,000 books, according to the warden, which students can use and thus gain information on the internet alone between 6 p.m. Yes, and 10 p.m. An arbitrary limitation cannot be claimed to be. It is also asserted that if the petitioner wishes to gather information through the internet, she is free to use a laptop for which there are no limitations.
- In Sojan Francis v. MG University, Unniraja v. Principal Medical College, Manu Vilson v. Sree Narayana College etc., it is mentioned that the director of the institution is the absolute decider to monitor and implement discipline in an academic institution; the college and hostel authorities are entitled to take reasonable steps to ensure discipline; it is their primary obligation. It is the responsibility of the organization to educate, maintain discipline, and implement the standards and policies that are legally formulated, emphasizing that the laws are not intended to suppress any fundamental right.
- In light of all the authorities cited, although it is significant that the principal of the college is the ultimate authority to impose control, there can be no disagreement that students should comply with policies and guidelines legally framed and that teachers are like adoptive families who are expected to care for, nurture and direct students in their pursuit of knowledge to ensure educational excellence. In accordance with the modernization of technology, the rules should be updated to allow students to gain information from all relevant sources. It will be open to the hostel authorities to monitor and control when disruptions or disturbances are caused by the use of cell phones by other students or to take action when any such complaint is filed. Mostly during study hours, the absolute constraint on its use and the way to surrender it is completely unjustified.
- It is important to keep in mind that the learned counsel for the college vehemently argued that the plaintiff cannot be heard to appeal the action taken in compliance with the rules in the absence of any challenge to the rules and regulations. But the law, in this case, was that the cell phones in the hostel could not be used. Accordingly, what persists are only the decision/instruction restricting/banning from 6 pm to 10 pm the use of cell phones and the way for the warden to surrender the mobile phone. If such an initiative is already found to violate constitutional freedom as well as confidentiality and would detrimentally affect the future and career of students who wish to gain information and compete with their peers, it is not possible to impose such guidance or prohibition.
- Although imposing discipline, the good qualities of the cell phone must also be seen. As specified by this Court, the limitation should be connected to the discipline and if there is nothing to prove that there was some act of indiscipline which could not stand on account of the petitioner’s use of mobile phones. If it is otherwise unconstitutional, the fact that no other student protested to the limitation or that all others abided by the guidelines would not make a prohibition lawful. No student is obligated to use a cell phone or not to use a mobile phone. With self-confidence and self-determination, it is for each of the students to determine that she will not abuse it and that she would only use it to boost her standard of education.
- The one and only constraint that can be put is that other students should not be disrupted by them. While engaging in the exercise of the right to privacy, individuals such as the petitioner shall also see that such practice does not infringe on the right of some other student dwelling in the hostel to privacy, particularly in his or her room.
- Moreover, at any point, if their conduct was not appropriate to him at all, it is not rational on the part of a parent to yell at the teachers or warden, or principal. Such activities of embarrassing teachers, too, are not fair or acceptable in front of the students and the public and are not predicted and thus despised by educated parents. What is to be contemplated in this situation, however, is the irrationality and wrongness of the consequential threshold to which the applicant is excluded.
- The college is obliged to operate a hostel in compliance with the University Regulations and the UGC Regulations to encourage students to reside near the college in order to allow them enough time to focus on their studies. And hence, only certain rules and procedures for imposing discipline are required to be followed by the hostel administrators. Discipline is not implemented by preventing the learners’ ways and methods of gaining information.
- In consideration of the above factors, it is unfair to enforce such limitations and the respondent must therefore re-admit the petitioner to the hostel without any further extension. It is clear that in a manner that humiliates any of the respondents or any other teacher or warden or matron in the hostel/college, the petitioner or her parent shall not do any act. It shall also be noted by the petitioner or any other prisoner that no inconvenience is caused to anyone by the use of a cell phone in the hostel.
In the case at hand, the Honorable court of law opined that the right to access the Internet has been recognized as a fundamental right which forms part of the right to privacy and the right to education, as provided for in Article 21 of the Constitution. The court ruled that disproportionate access to the Internet in an information society generates and propagates socio-economic exclusions.
What are the complications and repercussions of Internet Access and Digital literacy on Socio-Economic Development?
- Providing online services has advantages for the government in terms of quality and performance and also helps users to circumvent lower-level government bureaucracy.
- It enhances the government’s openness and transparency.
- It contributes to improved delivery of public services.
- It boosts citizens’ involvement in politics, etc.
- Knowledge of digital processes altered the way people work, interact, interpret data, and amuse themselves in a world economy.
- It will also increase the government’s attempts aimed at providing better prospects for schooling, health, and jobs.
- In Indian culture, it also facilitates socio-cultural modernization
Drawbacks in regards to Internet Accessibility:
- In recent times, many companies and services have become digital because of the information revolution and only some of them are accessible online.
- Social and economic backwardness is caused by the digital divide arising from knowledge poverty, lack of infrastructure, and lack of digital literacy.
- The digital divide can be seen across India’s socio-economic structure, i.e. between rural and urban India, the demographic characteristics of India (old and young, male and female), rich and poor.
- In India, digital literacy was less than 10%, according to the Deloitte survey, ‘Digital India: Unlocking the Trillion-Dollar Potential’ in mid-2016.
- Furthermore, in the lack of Internet connectivity and digital literacy allowing such accessibility, significant sections of the population would be further excluded, intensifying the digital gap that already persists.
- Although the government has provided various e-services at the local level through general service centers’, these are of little use without internet connectivity and computer literacy.
Should the Right to Internet Access be a Fundamental Right and if yes, enlist the reasons:
- Regulating disparity is the cornerstone of social justice and progress.
- In addition, reducing discrimination is also stated in the Indian Constitution in Article 39 of the Directive Principle of State Policy.
- In order to identify the meaning and range of the former, it has now become a settled judicial procedure to read fundamental rights together with directive principles.
- The right to access the internet and digital literacy are critical for the digital divide to be removed and for people to have enhanced access to data, services, and better livelihood incentives.
Initiatives are taken by the respected Government in the field of Internet Access:
- The government has recognized the technological age and is in furtherance of digitalization.
- The government has undertaken the Bharat Net program, which seeks to have a fiber optic cable network in all village panchayats.
- In order to provide Internet connectivity throughout the country, Bharat Net will serve as the massive infrastructure backbone.
- However, although the associated costs have multiplied, the project has regularly exceeded all its timelines.
- Also, 1.67 percent of the population was barely affected by the National Digital Literacy Mission.
- This has been recognized and contributed to the Digital India project in the Sustainable Development Goals as well as by the Indian government.
National Digital Literacy Mission:
- The National Digital Literacy Mission (NDLM) was launched with the aim of empowering at least one person per household with critical skills in digital literacy by 2020.
- NDLM is an attempt to promote the government’s vision of turning one digitally literate from each household.
- In a progressively digital environment, the program is designed to help adults with low technical literacy gain the skills they need to communicate.
Moreover, while the judgment of the High Court of Kerala recognizes the role played by the right to access the Internet in gaining access to other fundamental rights, it is indispensable that the right to access the Internet and digital literacy should be acknowledged as a right in itself.
Conclusory Remarks: Author’s Point of View
To sum up, all the contentions raised, the author asserts that this decision comes at a time when India’s EdTech industry is flourishing and is projected to expand to an industry of USD 1.96 billion by 2014. In academic achievement, technology will continue to become more and more entrenched. The introduction of emerging technology such as AI supplemented reality, virtual reality, big data, and STEM laboratories are revolutionizing how learners learn.
The significance of technology in education has also been recognized by government leaders in India, and this can be seen in a multitude of government policies centered on e-learning. This comprises SWAYAM, a government portal that offers students an online course.
Furthermore, the Kerala High Court’s judgment is pragmatic. It has been rightly accepted that e-learning allows everyone better access to more cost-effective learning.
 Anuj Garj v. Hostel Association of India, CIVIL APPEAL NO. 5657 OF 2007 [Arising out of SLP (Civil) No. 12781 of 2006].
 Shreya Singhal v. Union of India, WRIT PETITION (CRIMINAL) NO.167 OF 2012.
 PUCL v. Union of India,AIR 1997 SC 568, JT 1997 (1) SC 288, 1996 (9) SCALE 318, (1997) 1 SCC 301, 1996 Supp 10 SCR 321, 1997 (1) UJ 187 SC.
 Sojan Francis v. MG University, AIR 2003 Ker 290, 2003 (2) KLT 582.
 Unniraja v. Principal Medical College, AIR 1983 Ker 200.
 Manu Vilson v. Sree Narayana College, AIR 1996 Ker 369.