This article has been written by Syed Owais Khadri. This article provides a comprehensive study of the ruling rendered by the Hon’ble High Court of Kerala in Faheema Shirin v. State of Kerala (2019). The article discusses the facts, arguments, judgement, and reasoning in detail. It also sheds light on the point of law involved in the case and on the international instruments that were discussed in the case. Further, the article also attempts to provide an analysis of the judgement.

Introduction

Technological advancements have brought about a kind of revolution in almost every other field or arena, including the employment sector, learning, education, etc. The absence of any kind of bar or limitation on resources on digital platforms has made people opt for such resources and platforms rather than conventional ones. The boom of the Edtech industry through various sites and applications such as Byju’s, Unacademy, Coursera, etc. is a reflection of the rapid technological advancements. Even conventional educational institutions have started using and promoting such technological methods to make the process of learning easier and more convenient. Therefore, it would be fair to say that the mobile phone and the internet have become inseparable parts of human life and, subsequently, have also become part of individual rights and freedoms. Moreover, the internet has also been recognised as a human right by the United Nations in various international legal instruments.

As a result, the introduction of technology in the educational field has made digital learning an important part of student life in current times. The restriction on the usage of mobile phones and the internet in such a phase is a limitation or deprivation of opportunities and resources that are available on digital platforms. Hence, such restrictions can be seen as a violation of individual liberty, freedom, and rights.

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The instant case deals with a similar kind of restriction on the usage of mobile phones in the college hostel on the grounds of maintaining discipline. In this case, the petitioner was restricted from using a mobile phone on the hostel premises for a particular period of time and was later expelled from the college. She challenged this act of the college authorities before the Hon’ble High Court of Kerala, where the Court held the restriction on the usage of mobile phones and the internet and the expulsion of the petitioner from the college hostel as arbitrary and unreasonable. The Court ruled that the right to the internet forms part of the right to education and the right to privacy under Article 21 of the Indian Constitution.

Details of Faheema Shirin v. State of Kerala

The following are some of the important details of the case discussed in this article:

  • Case name: Faheema Shirin v. State of Kerala
  • Parties to the case:
    • Petitioner(s): Faheema Shirin
    • Respondent(s): State of Kerala; University of Calicut; University Grants Commission (UGC); Principal, Sree Narayana Guru College; Deputy Warden, Women’s Hostel, Sree Narayana Guru College; Matron, Women’s Hostel, Sree Narayana Guru College; Additional Respondent (Executive Director of Software)
  • Case No. W.P. 19716/2019
  • Equivalent citations: AIR 2020 Ker 35, 2019 SCC OnLine Ker 2976
  • Court: Kerala High Court
  • Bench: Justice. P.V. Asha
  • Judgement date: September 19, 2019

Facts of Faheema Shirin v. State of Kerala

  • The petitioner was a student of 3rd Sem B.A. from Sree Narayanaguru College, Kozhikode, which is an aided college affiliated with the University of Calicut. She was staying in the hostel, which is run by the college. 
  • She stated in the writ petition that the hostel inmates were restricted from using mobile phones between 10 p.m. to 6 a.m., which was later changed to 6 p.m. instead of 10 p.m. She further alleged that there was a restriction on the undergraduate students on the usage of laptops as well.
  • She stated that she attempted to communicate the aforementioned issues and concerns with the deputy warden, whereby she requested that she convene a meeting of the hostel inmates to discuss or explain the inconvenience caused by the restrictions imposed.
  • The requested meeting was conducted with a delay of one week, but no discussion was made regarding the restriction on electronic devices. It was followed by a WhatsApp message that asked the inmates to vacate the hostel if they failed to abide by the rules.
  • She further stated that she then approached the principal of the college to inform him about the issue, where she was asked to state in writing that she wasn’t willing to abide by the rules, after which a notice was issued to her to vacate the hostel.
  • Furthermore, she stated had submitted a letter applying for leave for a period of 3 days. On her return, she noticed that her hostel room was locked and claimed that the hostel authorities did not allow her to take her belongings.
  • The petitioner, therefore approached the Hon’ble High Court through this Writ Petition, challenging the restrictions imposed on the use of mobile phones and subsequently her forceful eviction from college on the grounds that it violates her right to education, right to privacy, and right to the internet under Articles 19, 21, 21A, and other appropriate provisions of the Indian Constitution.

Issues raised

  • Whether restrictions imposed by the hostel authorities on the use of mobile phones have violated the fundamental rights of the petitioner?
  • Whether the usage of mobile phones between 6 p.m. to 10 p.m. could be seen as indiscipline?
  • Whether the refusal to abide by the instructions on the usage of mobile phones should lead to expulsion from the college hostel?
  • Whether the imposition of restrictions on the usage of mobile phones for the enforcement of discipline could result in a violation of the right of students to acquire knowledge through the Internet?

Legal provisions involved in Faheema Shirin v. State of Kerala

This instant case involved discussion and arguments over the interpretation of various individual rights such as the right to the internet, the right to freedom of speech and expression, the right to equality, the right to education, the right to privacy etc. It also involved a debate over restrictions on those rights. The primary discussion in the case was with regard to the fundamental rights guaranteed under various constitutional provisions. The Court also looked into certain international instruments and their provisions that emphasise protecting human rights and ensuring gender equality. Some of the legal provisions discussed in the case are as follows:

Constitution of India, 1950

The Constitution of India guarantees various fundamental rights under Part III, which consists of Articles 12 to 35. The relevant fundamental rights and constitutional provisions discussed in this case are as follows:

Article 14

Article 14 of the Constitution guarantees the right to equality for every individual in India. It prohibits the denial of equality before the law and guarantees equal protection of the law by the state.

The provision encompasses two important aspects of equality, the first being equality before the law, which means that every individual is equal in the eyes of the law and there shall not be any privilege given to any citizen. The second aspect of equality reflects the positive content of the provision according to which the state shall ensure that there is no discrimination of any kind and every citizen is entitled to equal protection of the laws.

The Hon’ble Supreme Court, in E.P.Royappa v. State of Tamil Nadu (1973), held that any act that is arbitrary in nature is violative of the right to equality under Article 14  of the Constitution. 

Article 15

Article 15 of the Constitution prohibits discrimination on any grounds, such as religion, caste, race, gender, place of birth, etc., against any citizen.

Article 19

Article 19(1) guarantees the right to various freedoms, such as the right to freedom of speech and expression, freedom of movement, peaceful assembly, etc. The right to the internet was ruled as a part of freedom of speech and expression and therefore a fundamental right under Article 19(1) by the Hon’ble Supreme Court in Anuradha Bhasin v. Union of India (2020).

Article 19(2) lays down that the freedoms guaranteed under the preceding clause can be restricted only on certain reasonable grounds, such as sovereignty, integrity, security of the state, decency, morality, etc. The restrictions that are imposed on fundamental rights under Article 19(1) should be reasonable in nature.

Article 21

Article 21 of the Constitution lays down one of the most significant fundamental rights provided in the Constitution of India. Article 21 provides for the right to life and personal liberty, which in its broad scope embodies various other rights as fundamental rights under the ambit of the expression “life and personal liberty.” The right to privacy and the right to education are two such rights that are declared to be part of the right to life and personal liberty under Article 21 by the Hon’ble Supreme Court through various landmark rulings.

The Hon’ble Supreme Court in K.S. Puttaswamy v. Union of India (2017) ruled that the right to privacy is an intrinsic part of the right to personal liberty under Article 21. Similarly, the right to education was declared part of the right to life under Article 21 by the Hon’ble Supreme Court in Mohini Jain v. State of Karnataka (1992) and was reaffirmed in Unni Krishnan v. State of Andhra Pradesh (1993) before its addition as a separate fundamental right under Article 21A. 

Article 21A

Article 21A of the Constitution guarantees the right to education as a fundamental right. It guarantees free and compulsory education to children belonging to the age group of 6 to 14 years. It was added to the Constitution by the 86th Constitutional Amendment to include the right to education as a separate fundamental right after the Hon’ble Supreme Court observed that the right to education is a part of the right to life under Article 21 of the Indian Constitution in the cases of Mohini Jain v. State of Karnataka (1992) and Unnikrishnan v. State of Andhra Pradesh (1993).

The Right to Education (RTE) Act was enacted in 2009 to give effect to the provisions of Article 21A of the Constitution.

Article 226

Article 226 of the Constitution empowers the high courts to issue writs. Any person may approach the High Court of their respective jurisdiction through a writ petition with a request or prayer to issue a writ for the enforcement of fundamental rights provided under Part III of the Constitution, and the High Court may issue a writ to any person or authority, including the government.

UGC Regulations, 2012

The UGC (Promotion of Equity in High Educational Institutions) Regulations 2012 are a set of regulations made and notified by the University Grants Commission (UGC) under Section 26 of the University Grants Commission Act, 1956. The regulations specifically lay down measures that are supposed to be taken by universities to prevent discrimination on the grounds of gender, religion, language, etc.

  • Regulation 3 mandates the universities to take appropriate measures against discrimination, which includes safeguarding the interests of the students without any prejudice to their gender, caste, religion, language, etc.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979

The Convention on the Elimination of All Forms of Discrimination Against Women, or CEDAW, was adopted by the United Nations General Assembly in December 1979, aiming to end discrimination against women across the globe. The Convention came into force in September 1981 and is also known as the International Bill of Women’s Rights. The Convention consists of 30 Articles and a Preamble. The state parties to the convention commit themselves to taking proactive steps to eliminate discrimination against women in their respective states. India became a signatory to the Convention in 1990 and ratified it in 1993. Beti Bachao Beti Padhao is one of several schemes that serve the purpose of giving effect to the provisions of the Convention. 

Article 10 of the Convention obligates the state parties to take measures to end discrimination against women in the field of education, ensuring equal rights for women and men.

Beijing Declaration

The Beijing Declaration was adopted during the Fourth World Conference on Women in 1995 in Beijing. The Declaration aims at achieving equality and development for women. It reaffirms the commitments made in various international instruments, such as the Universal Declaration of Human Rights and the Convention on Elimination of All Forms of Discrimination Against Women, to ensure equal rights for women and men and to uphold gender equality to end discrimination against women. The declaration also lays down a commitment to the intensification of efforts to ensure the protection of equal rights for women.

UN Resolutions

The UN resolutions adopted in the United Nations General Assembly (UNGA) on various subjects. A few of the UNGA Resolutions discussed in this case are as follows:

Resolution 23/2

Resolution 23/2 was adopted by the Human Rights Council on the subject of “the role of freedom of opinion and expression in women’s empowerment”.  The resolution affirmed the cardinal role of freedom of opinion and expression in women’s empowerment and its essentiality to achieve equality, peace, democracy, etc. The resolution also expressed concern over the discrimination that prevents women from enjoying their fundamental rights in a full-fledged manner. Moreover, it obligates all the states to take certain steps to facilitate the freedom of opinion and expression of women and to prevent discrimination against them.

Clause 3(b) of the resolution calls upon the states to take steps to ensure women and girls enjoy their right to freedom of opinion and expression without any discrimination, especially in employment, the justice system, education, etc.

Resolution 20/28

Resolution 20/8 was adopted by the Human Rights Council on the subject of “Promotion, Protection, and Enjoyment of Human Rights on the Internet”. The resolution affirms that the human rights that are enjoyed by people offline must also be available on the internet. It stresses Article 19 of the Universal Declaration of Human Rights, which guarantees the right to freedom of opinion and expression. The resolution also requests that the states enable and encourage access to the internet.

Resolution 20/28

Resolution 26/13 was adopted by the Human Rights Council on the subject of “Promotion, Protection, and Enjoyment of Human Rights on the Internet”. This resolution notes that access to the internet enables numerous opportunities for affordable and inclusive education across the globe. It emphasises that the internet is a tool that enables the promotion of the right to education. The resolution, therefore, appeals to the states to encourage digital literacy and facilitate access to information on the internet, as it is an important tool in facilitating the promotion of the right to education.

Universal Declaration of Human Rights (UDHR), 1948

The Universal Declaration of Human Rights, or the UDHR, was adopted by the United Nations General Assembly in December 1948 for the protection of the human rights of all individuals across the globe. It is the first and foremost international instrument with respect to human rights. It is the primary proclamation that reflects the commitment of every nation towards the protection of human rights. This declaration became the basis of international human rights law and laid the foundation for the evolution of human rights law not just at the international level but also at the domestic level. It is also of great significance because it paved the way for various other instruments on specific human rights concerns, such as the CEDAW of 1979. The declaration consists of a Preamble and 30 Articles that provide for various human rights, such as civil and political rights, cultural and educational rights, etc.

  • Articles 1, 2, and 7 guarantee the right to equality for all individuals and the entitlement of all rights to all individuals without any discrimination on any grounds, including sex.
  • Article 19 guarantees the right to freedom of opinion and expression.
  • Article 26 guarantees the right to education.
  • Article 29 states that all of the rights that are mentioned in the declaration should only be subjected to limitations that are recognised by the law for the purposes of public order, morality, respect for others rights, and the general welfare of society.

Arguments of the parties in Faheema Shirin v. State of Kerala

Petitioner

The petitioner primarily argued that the contention by the college or hostel authorities that they imposed restrictions on the usage of mobile phones at the request of some parents is not right, as neither the parents were notified nor was any meeting conducted with the parents to discuss the implementation of the restrictions. She contended that the restrictions violated her fundamental rights under Part III of the Constitution.

Violation of the right to equality and the right against discrimination

  • The petitioner contended that the restrictions were only imposed in the girls’ hostel and not in the boys’ hostel, which directly amounts to gender discrimination. She argued that this act of the hostel authorities violated UGC guidelines, which provide for the prohibition of gender discrimination. 
  • Moreover, she also argued that college authorities have failed to comply with the UGC Regulations 2012, which call upon colleges to take measures to protect the interests of students without any kind of discrimination on the grounds of gender, race, language, religion, caste, etc.
  • On the aforementioned grounds, she contended that the restrictions imposed on the usage of mobile phones are arbitrary, compromise the quality of education received by female students, and therefore hinder their full abilities and potential.
  • She pointed out that the impugned restrictions violate the principles incorporated under various international instruments, such as the Beijing Declaration, the Universal Declaration of Human Rights, and the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), under which the state parties endeavour to take measures to tackle and prevent discrimination against women.

Violation of the right to education

The petitioner contended that the prohibition of the usage of mobile phones deprives her of accessing the source of knowledge and her right to acquire knowledge through the internet, which affects and compromises the quality of education she is entitled to. She further argued that her expulsion from the college hostel had impacted her studies. She contended that she was forced to travel due to the expulsion, which resulted in a reduction in her study time, ultimately affecting her education. On the aforementioned grounds, she contended that her right to education under Article 21A has been violated.

Violation of the right to freedom of speech and expression/internet

The petitioner argued that access to the internet is an intrinsic part of freedom of speech and expression under Article 19(1)(a), and the restrictions imposed do not fall under the category of reasonable restrictions mentioned under Article 19(2) of the Constitution. Therefore, she contended that the restriction on the usage of mobile phones amounts to the denial of access to the internet, violating her right to freedom of speech and expression through the internet under Article 19(1)(a) of the Constitution of India.

Violation of the right to privacy

The petitioner argued that she, being an adult, had the right to decide on the usage of a mobile phone, and nobody has the authority to interfere with that right of hers; hence, the forceful seizure is an invasion of her privacy. She further argued that the restriction on the use of mobile phones based on parental concern amounts to interference with her personal autonomy. 

On the aforementioned grounds, she contended that the restrictions on the usage of mobile phones and her expulsion from the college hostel were illegal and arbitrary as they resulted in the violation of her various fundamental rights.

Judgements relied upon/referred

The Petitioner relied upon various judgements of the Hon’ble Apex Court to support her contentions. A few of the judgements that were referred to are as follows:

Anuj Garj v. Hostel Association of India (2008)

Criminal litigation

The Hon’ble Supreme Court, in this case, observed that the assessment of any law should not be based just upon the aim of the law but also on the implications of the law. It was further observed that the ultimate effect of any law should not result in the oppression of women.

Ministry of Information and Broadcasting v. Cricket Association of Bengal (1995)

The Apex Court in the case reiterated that the fundamental right can be limited by any law only on the grounds mentioned under Article 19(2), and hence, no restrictions on any grounds other than those specified under Article 19(2) can be imposed on the freedom of speech and expression. The Court further clarified that the burden to justify the reasonableness of the restriction is on the authority imposing it.

Shreya Singhal v. Union of India (2015)

The Hon’ble Supreme Court in this case declared Section 66A of the Information Technology Act, 2000, unconstitutional as it did not fall under any of the grounds mentioned under Article 19(2) of the Constitution. The Court noted that the restrictions have to be in the interest of any of the grounds specified under Article 19(2), and such restrictions can only qualify if they’re closely related to any of those grounds.

Justice K.S. Puttaswamy (Retd.) v. Union of India (2017)

The Apex Court in this ruling noted that fundamental rights are the Constitutional firewall to the state’s interference with the core freedoms that constitute the liberties of individuals. It ruled that these core freedoms must be defended, and the right to privacy is certainly one of them. The Court held that privacy is a part of liberty under Article 21 of the Constitution. It further held that the right to privacy is inherent in all the freedoms and rights guaranteed under Part III of the Constitution.

PUCL v. Union of India (1997)

The Hon’ble Supreme Court, in this case, observed that the right to privacy is a part of the right to ‘life’ and ‘personal liberty’ under Article 21 of the Constitution, and hence it cannot be curtailed “except according to the procedure established by law.”

National Legal Services Authority v. Union of India (2014)

The Hon’ble Apex Court, in this case, noted the fundamental right under Article 14 of the Constitution, which guarantees the right to equality, and observed that the term “equality” includes equal and complete enjoyment of all rights and freedoms. The Court further observed that the treatment of equals as unequal and unequal as equals would be violative of the basic structure of the Constitution, as the right to equality under Article 14 has been declared a basic feature of the Constitution.

Respondents

The petition involved multiple respondents, including the State of Kerala, the college management, and authorities, i.e., the principal, the hostel warden, the Executive Director of Software, etc. The primary contentions were made by the college authorities, who were Respondent No. 4 in the petition. The next set of contentions made before the Court were by the Executive Director of Software, who supported the contentions of the petitioner. The contentions made by the two respondents, as mentioned above, are as follows:

Respondent 4

  • Respondent 4 in this case, i.e., the principal of the college or the college authorities, contended that rule 14 of the hostel rules strictly prohibits the usage of mobile phones in the college and the hostel. They further contended that the petitioner and her father had agreed to abide by the rules of the hostel and obey the directions of the hostel authorities. Therefore, they argued that she had knowledge of the rules and regulations of the college and had consented to follow such rules, which included the restriction on mobile phone usage.
  • The Respondent contended that the college received complaints from the parents of women’s hostel inmates regarding the excessive usage of mobile phones, which forced them to convene a meeting where it was decided to restrict the usage of mobile phones between 6 and 10 p.m. The respondent also mentioned that this decision was communicated to all the hostel inmates. The college further mentioned that no application or request was made by the petitioner in this regard, alleged that only she had an issue, and also alleged that the petitioner and her father behaved arrogantly.
  • The college authorities contended that there is a restriction on mobile phone usage in the boys’ hostel as well, but the times of restriction are different. Therefore, the college contended that there is no discrimination by the college or the hostel authorities based on gender.
  • Furthermore, the college contended that it has enough resources, including a library with more than 30,000 books that are available for students to acquire knowledge. The college therefore contended that the internet is not the only necessary medium for the students to acquire knowledge. Moreover, the college also contended that there is no restriction imposed on the usage of laptops in the hostel, and she is free to use the laptop to acquire knowledge through the Internet.
  • The college, for the reasons mentioned above, contended that the restriction imposed on mobile phone usage in the hostel for a specific period of time is not unreasonable. 
  • Further, the college contended that the head of the institution is the principal authority to take measures to enforce discipline in the institution. Therefore, the college and hostel authorities contended that they have the right to make rules to maintain discipline, and such rules are not intended to take away any fundamental rights of the students but only to maintain and enforce discipline.

Judgements relied upon/referred

Sojan Francis v. M.G. University (2003)

The Hon’ble High Court of Kerala, in this case, upheld the rules prohibiting political activities on the educational campus. The Hon’ble Court, in this case, observed that the protocol or regulations cannot be breached under the guise of rights or freedom under Article 19(1)(a) or 19(1)(c) of the Constitution. The Court ruled that the students are bound to follow the rules and regulations laid down by the institution once they’re admitted to it, as such regulations are necessary for the administration of the institution. Moreover, the Court noted that the restrictions imposed are reasonable in nature and are to promote discipline and achieve the objectives of the educational institution, and the rationale behind such reasonable restrictions cannot be challenged after getting admitted to the institution.

P.M. Unniraja v. Principal, Medical College (1983)

The Hon’ble High Court of Kerala, in this case, observed that the head of the institution should be legally presumed to possess an inherent right to take any measures or do any acts, that are necessary, in such a head’s opinion, to maintain discipline in the institution, and denial of such a right to the head of the institution could be considered as an endpoint of discipline in the institution. This observation was reiterated by the same Hon’ble Court in Manu Vilson v. Sree Narayan College (1996).

Indulekha Joseph v. M.G. University (2008)

The Hon’ble High Court of Kerala observed in this case that discipline is the cardinal asset of any educational institution, and the non-inculcation of the values of discipline in the members of the institution will have a detrimental effect on society at large since educational institutions are the breeding grounds for the upcoming generations. The Court noted that there should be no choice in matters relating to discipline in an educational institution, and all the other organisational or individual rights must be subject to the rules and regulations laid down by such an institution.

M.H. Devendrappa v. Karnataka State Small Industries Corporation (1988)

The Hon’ble Supreme Court, in this case, ruled that freedom of speech and expression can always be curtailed to maintain discipline in a service. The Court observed that a reasonable regulation that has been formulated to promote discipline and efficiency can be imposed by a government organisation, and such regulation cannot be breached in the name of freedom. The Court, however, reiterated that the Courts shall be available to ensure that such regulations are not so vaguely formulated as to restrict fundamental rights in an unreasonable or arbitrary manner.

The college authorities also relied upon other rulings, such as T.M.A.Pai Foundation v. State of Karnataka (2002) and Manager Kuriakose Elias College Mannam v. State (2017), to support their statement that the teachers are like the foster parents who are needed to guide the students in acquiring education.

Executive Director of Software

The Executive Director of Software (hereinafter referred to as “the Executive Director”), who was impleaded by the petitioners in this case, also presented a few arguments before the Court supporting the contentions of the petitioners by filing an affidavit. The arguments presented by the Executive Director of Software are as follows: 

  • The Executive Director of Software stated that the restriction on the usage of mobile phones and laptops imposed by the college deprives the inmates of the girls’ hostel of their right to acquire knowledge through digital or internet resources.
  • The Executive Director stated that the restriction imposed on the inmates of the girls’ hostel places them in a disadvantaged position compared to the inmates of the boys’ hostel and also in comparison with the students who are not residing in the hostel and the students of other colleges who all have access to their mobile phones, laptops, and the internet. Therefore, the restriction is arbitrary and results in the limitation of the right to freedom of speech and expression. The Executive Director relied upon the ruling in the Ministry of Information and Broadcasting v. Cricket Association of Bengal (1995) to support the statement mentioned above.
  • The Executive Director also stated that the restriction on the usage of mobile phones imposed by the college does not fall within the ambit of the grounds mentioned under Article 19(2) of the Constitution. The Executive Director relied upon the judgement of Bennett Colemon v. Union of India (1972), where the Hon’ble Supreme Court observed that the restrictions falling outside the ambit of Article 19(2) violate the right to freedom of speech and expression. It was also held in this case that the restrictions cannot be unreasonable, even though they fall under the ambit of grounds mentioned under Article 19(2).
  • Furthermore, the Executive Director brought to the attention of the Court a statistic from the survey conducted by UNESCO that showed that women are in a disadvantaged position in terms of internet access and usage since 70% of internet users are men.

Moreover, the additional 7th Respondent placed an argument before the Court that the confiscation of the phone is a violation of the right to property under Article 300A of the Constitution since the restriction on the usage of mobile phones imposed by the hostel is without any authority and also a violation of the right to privacy.

Judgement given by the court in Faheema Shirin v. State of Kerala

The Hon’ble High Court of Kerala, in this case, observed that the instructions imposed by the supreme authority of the hostel or the college are supposed to be followed by the college students and the hostel inmates, provided that such instructions are justifiable. The Court primarily held that if an instruction is unreasonable and results in a violation of the fundamental rights of the hostel inmates, it is not necessary for them to follow such instruction, particularly when the inmate is an adult.

The Court ruled that a student who has crossed the age of 18 should be allowed to have the freedom to choose the medium of study, provided that such freedom does not cause disturbance to others. It ruled that no student must be forced to either use or not use the mobile phone, and it must be open for the students to decide upon it.  The Court further ruled that the enforcement of discipline must not obstruct the means of acquiring knowledge. 

The Hon’ble Court declared that the right to have access to the internet is part of the right to education and the right to privacy under Article 21 of the Indian Constitution.

The Court ruled that the regulations relating to the maintenance of discipline must be adjusted to adapt to modern technologies to allow students to gather knowledge from all the available resources. The Court, however, noted that the college authorities can supervise to ensure that the usage of mobile phones does not result in any kind of disturbance to other college students or hostel inmates. It was observed that the only restriction that can be imposed on the students is to ensure that no disturbance is caused to other students. 

The Court ultimately ruled that the imposition of restrictions on the usage of mobile phones was unreasonable and hence directed the college authorities to re-admit the petitioner to the college hostel. Meanwhile, it also directed the petitioner to ensure that no disturbance is caused to other inmates of the hostel.

Ratio decidendi

The Hon’ble High Court of Kerala, while going through the various legal rules, ordinances, and regulations relating to the universities, noted that students have a right to residence in the college hostel, and it also noted that the colleges are obligated to provide accommodation or residence to the students who stay away from the college. The Hon’ble Court, based on the same set of rules, ordinances, and regulations, also noted that the students are required to follow instructions or rules made by the authorities of the hostel, such as the principal or the warden, provided that such rules have been made with justification.

The Court agreed with the rulings delivered in various cases, such as Sojan Francis v. M.G. University (2003), P.M. Unniraja v. Principal, Medical College (1983), Indulekha Joseph v. M.G. University (2008), and Manu Vilson v. Sree Narayan College (1996), where it was held that the principal is the supreme authority of an institution to impose disciplinary measures. However, the Court observed that, though the students are required to follow the instructions, such restrictions or measures must be imposed on justifiable grounds. Therefore, for the aforesaid reasons, the Court held that the students are not required to follow any restriction if it is arbitrary or unreasonable and infringes on any fundamental right.

The Court noted that the mere usage of mobile phones does not ordinarily impose any kind of harm. It was further noted that the college authorities failed to point out any kind of disturbance that was caused to the other students due to the usage of mobile phones by the petitioner or any other hostel inmate. 

The Court acknowledged the significance of mobile phones and the internet in the present-day scenario. It made various observations on how both of them have become a part of daily life and are no longer a luxury. The Court, in response to the contention that the usage of mobile phones is not restricted, observed that not every student can afford a laptop, whereas every individual is likely to have a mobile phone. It further noted the convenience of having a mobile phone since it is portable and handy. 

The Court further highlighted that the restriction only on the usage of mobile phones and for a limited period is of no use as it does not serve the purpose of preventing misuse of mobile phones or the internet (which is being contented as the ground or objective of the impugned restriction) since such misuse can happen with the usage of laptops too and also with the usage of mobile phones beyond the specific time period that has been restricted.

The Court noted that allowing the usage of mobile phones by the students and making the internet accessible to the students will amplify the opportunities for the students to gather knowledge and information from various sources, including the internet, based on which the students can strive for excellence and enhance the standard and quality of education.

Moreover, the Court noted the various international legal documents, including the UN Resolutions, the Beijing Declaration, and the CEDAW, that were brought to Court’s attention. It referred to the ruling in the case of Vishaka v. State of Rajasthan (1997), where the court took note of the provisions under Article 51(c) and Article 253 of the Constitution and held that international laws and conventions have to be harmoniously read with the fundamental rights even in the absence of domestic laws enforcing such international conventions or dealing with the subject matters that were discussed in such conventions, provided that such harmonious construction does not lead to any inconsistency. It therefore held that the right to the Internet falls within the ambit of the right to privacy and the right to education under Article 21 of the Constitution since such a right has been discussed and provided under the various international instruments discussed above.

The Court also referred to the ruling of the Hon’ble Apex Court in Anuj Garj v. Hostel Association of India (2008), where the Court had made certain observations regarding the autonomy of adults to make choices or to make decisions. The Court in the said case observed that the young population, regardless of gender, should have knowledge about what would be best for them and also regarding the advantages and disadvantages of a particular profession. It held that a citizen of India should be allowed to proceed in life according to their choices, subject to constitutional and statutory restrictions. The Court had further observed that the approach in the policies and actions of the state should be pointing towards or reflecting women’s empowerment and not the restriction on women’s freedom, as the former would be more rational. The Court had also ruled that there should be some equitable proportionality between the process and the goal. The Hon’ble High Court of Kerala noted that although the observations made in the case referred to above were with regard to employment, the observations, the rationale behind them, and the resolutions in CEDAW used are equally applicable in this case.

The Court further referred to the rulings in K.S. Puttaswamy v. Union of India (2017), which held the right to privacy as a fundamental right, and Charu Khurana v. Union of India (2014), where the Court noted that it is time to treat women as equal to men and not subordinate to them. The Court also referred to the judgement of the Hon’ble Apex Court in S. Rengarajan v. Jagjivan Ram (1989), in which the Court ruled that the censoring must be done considering the social climate and must adapt to the current climate. The Court had ruled that the freedom of speech and expression under Article 19(1)(a) can be restricted only on the grounds provided under Article 19(2), and such restriction must be justified with necessity and not with convenience. 

Furthermore, the Court referred to the ruling of itself in Anjitha. K. Jose. v. State of Kerala (2019). The Court held that there should be a relationship that has to be established between the restriction and discipline, and the restriction cannot be valid if it fails to establish any act of indiscipline. The Court noted that the mere absence of objection from other students or hostel inmates to the rule or the abeyance of a restriction by other students or inmates does not make the restriction legal if it is otherwise illegal.

Moreover, the Court also took note of the online courses and digital learning promoted by the UGC by recognising the online courses provided on the program or platform called SWAYAM. It noted that the restriction on the usage of mobile phones would lead to the deprivation of similar courses, e-books, e-newspapers, and various other digital learning facilities.

Analysis of Faheema Shirin v. State of Kerala

The Hon’ble High Court of Kerala, in this case, delivered a notable precedent on the subject of fundamental rights, particularly the freedom of speech and expression, the right to privacy, and the right to the Internet. Although there are several legal instruments, mostly international, that expressly recognise the right to the internet as a basic human right, this case paved the way for the recognition of the right to the internet as a part of fundamental rights under Part III of the Constitution for the first time in the Indian legal arena. This ruling was followed by a landmark ruling, a considerably more significant one, by the Hon’ble Supreme Court of India in 2020, when the Hon’ble Apex Court declared the right to the internet as a part of freedom of speech and expression under Article 19(1) of the Constitution.

Further, one of the other important aspects of this ruling is that the Hon’ble High Court has not restricted itself merely to legal questions or interpretations but has also taken account of societal changes and the advancements in modern technology while delivering the judgement. This approach towards adaptation to changes is of great significance for the evolution of law since law is not a static entity but a dynamic one that is subject to changes with time and the needs of society. Moreover, the Court also took note of the various efforts that are being made by the administration to promote digital learning, which included the online courses on SWAYAM approved by the UGC and other efforts by the state government to make the internet accessible, considering it a human right.

The Hon’ble Court in this case has not only recognised the right to the internet as a fundamental right but also shed light on the extent and nature of restrictions that may be imposed on the fundamental rights. The Court examined the scope of limitations on fundamental rights on grounds that may be subjective, such as discipline in this case. The Court, to examine the validity of the restrictions on fundamental rights, primarily looked into the necessity or basis of the restrictions that have been imposed to decide whether such restrictions fell well within the authority of the Principal. The Court noted that mere disobedience of regulations without any disturbance cannot be a valid ground for restriction on the usage of mobile phones or expulsion from the college. The Court observed that the restriction of the right could only be on the grounds of disturbance to other students.

Although the Court agreed that the principal of the college has the supreme authority to take measures to maintain discipline and that the regulations formulated by such authority have to be followed by the students, it reiterated that the regulations must be formulated with modifications to adapt to technological advancements, and they must be able to establish their necessity and the justification for such regulations. 

One of the other important parts of this case was concerning the autonomy of students (adults) to make choices or decisions. The recognition of this autonomy is of paramount significance given that a lot of decisions and choices are generally imposed upon the students (adults), either by the parents or by the teachers. The Court in this case shed light upon this aspect, where it recognised the autonomy of the students to make decisions by noting that the students are adults who have the right to make their own decisions regarding the study time and the sources to use for the said purpose and cannot be compelled to study in a certain manner or at a certain time. The Court held that it is not necessary for the student to obey such restrictions if they’re arbitrary or unreasonable. 

Besides, the Court also directed the parents to understand the necessity of providing autonomy to the students to make their decisions. It stressed the necessity for the parents as well as the teachers to understand the necessity of considering the pros of mobile phones and the internet, which can enable the students to have greater opportunities, whereas restricting them by focusing on the cons would mean the limitation of opportunities that are available on digital platforms. The court in this case suggested the need for a conducive atmosphere to make students develop the habit of self-restraint through counseling rather than the forceful imposition of restrictions.

Ultimately, the Court suggested a balance of rights and duties in the discussions over individual freedom. The Court directed the Petitioner to fulfil her duty by ensuring no disturbance is caused to other students while exercising her rights. It was observed that while exercising her right to privacy, the petitioner must ensure that the right to privacy of other hostel inmates is not invaded.

Conclusion

It is an undeniable fact that the internet has also played a great role in the expansion of the field of education and the process of learning through the introduction of various digital platforms and resources across the globe. It plays an important role in intensifying the opportunities that are available to students. It helps in the development of various skills in students. Hence, it is essential to ensure that no individual is denied their right to have access to the internet and, therefore, to exercise their right to education through the internet. The Hon’ble High Court of Kerala, through this ruling, has facilitated the legal recognition of the right to the Internet in the Indian legal arena. The Court in this case has examined various aspects relating to fundamental rights and their restrictions on various grounds. The court has also recognised the right of young individuals, particularly students (adults), to be entitled to make decisions and choices on their own, and it has suggested teachers, as well as parents, ensure a conducive atmosphere, facilitating the young minds to develop rationality and awareness for such decision-making.

Ultimately, as pointed out by the Hon’ble Court, it is important for individuals to keep a note of their duties while exercising their rights. It is essential to ensure that the rights of others are not violated while exercising one’s rights. This ruling also highlights the necessity of modifications in regulations to adapt to societal and technological changes or advancements.

Frequently Asked Questions (FAQs)

Is the right to the internet a fundamental right? 

Yes, the right to the internet has been declared a fundamental right as an inherent part of freedom of speech and expression and other rights guaranteed under Article 19(1) of the Indian Constitution by the Hon’ble Supreme Court of India in Anuradha Bhasin v. Union of India (2020).

Is the right to privacy a fundamental right?

Yes, the right to privacy has been declared a fundamental right as an inherent part of the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution by a 9-judge bench of the Hon’ble Supreme Court of India in K.S. Puttaswamy v. Union of India (2017).

Is the right to education a fundamental right?

Yes, the right to education is a fundamental right under Article 21A of the Constitution. It was also ruled by the Hon’ble Supreme Court in the cases of Mohini Jain v. State of Karnataka (1992) and Unnikrishnan v. State of Andhra Pradesh (1993) before the introduction of Article 21A in the Constitution.

Whether the fundamental rights under Article 19(1) are absolute?

No, the fundamental rights under Article 19(1) are not absolute in nature and are subject to reasonable restrictions under Article 19(2). Therefore, one cannot claim absolute enjoyment of the rights guaranteed under Article 19(1). The right to freedom of speech and expression or any other right under Article 19(1) can be restricted on grounds provided under Article 19(2).

How do international instruments help in the recognition of rights at the domestic level?

The government is obliged to give effect to the treaty obligations under Article 253 of the Constitution. Moreover, Article 51(c) of the Constitution imposes a duty upon the government to foster respect for international law and treaty obligations. It has been affirmed by the Hon’ble Supreme Court in the case of Vishaka v. State of Rajasthan (1997) that international instruments must be read harmoniously with domestic law.

References

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