In the High Court of Kerala
WP(MD)No.15664 of 2019 and WMP(MD)No.12339 of 2019
Petitioner
Faheema Shirin
Respondent
1. State of Kerala
2. The University of Calicut, The University Grants Commission (UGC)
3. The Principal of Sree Narayaguru College,
4. The Deputy Warden and Matron of the Women’s Hostel
Date of Judgement
19th September, 2019
Bench
Justice P.V. Ashaigh Vourt of Kerala
Facts:
The petitioner, Faheema Shirin, is a female student at Sree Narayaguru College (affiliate of the University of Calicut) who was residing at the Women’s Hostel run by the college. The hostel authorities implemented new regulations at the Hostel which restricted the use of mobile phones within the hostel from 10:00 pm to 6:00 am and then from 6pm to 10pm, while the use of laptop by undergraduates was prohibited.
Upon receiving the notification of the new rule, Shirin complained to the Hostel Authorities that the restrictions on the usage of mobile phones was inconvenient and requested to convene a meeting to discuss the same. When her efforts were rebuffed, she took the matter to the Principal of the college requesting to relax the restrictions. Thereupon. Shirin was asked to give her reluctance in abiding the hostel rules in writing and her parents were asked to meet with the Principal. In the meeting, they were informed that if Shrin did not comply with the Hostel’s rules and regulations she would have to vacate her room immediately. The residents of the Hostel were also asked to furnish a document stating their willingness to comply with the restriction. Shrin was served a notice to vacate the hostel within 12 hours and thereafter when she arrived to vacate her room, the door was locked and the Hostel Authorities did not allow her to take her belongings. The loss of housing was also detrimental to Shirin as she would have to travel nearly 150 km every day making it impossible for her to attend her college classes.
Issues:
1. Whether the restrictions imposed by the Hostel on the use of mobile phones infringed the fundamental rights of the petitioner, even if the restrictions was brought about at the request of the parents?
Arguments Advanced
Arguments from the Petitioner:
1. Even though the Hostel authorities state that the new restrictions came at the request of some parents, no such information was provided to her nor her parents prior to the implementation of the new rules.
2. The restriction was discriminatory in nature as it was only imposed in the girls hostel, thereby violating the Clause 5 of the Guidelines issued by UGC which prohibits gender discrimination in colleges and universities.
3. The restriction was said to be arbitrary and hinder the education of the female students directly violating Convention on Elimination of all forms of Discrimination against Women (CEDAW), the Beijing Declaration and the Universal Declaration of Human Rights.
4. The restriction was also violative of the State’s recognition of the right to access the internet as a human right and its initiative to make internet accessible to all under the Digital Kerala Vision.
5. The State’s education department had also provided QR Code in textbooks enabling the students to scan it and read the topics and watch videos on their mobile phones. The restrictions on the usage of mobile phones was done to not hamper the student’s study hours but the restriction, in fact, directly hampers the same and violates their Right to Education.
6. It was observed that the right to access internet formed a part of Freedom of Speech and Expression as guaranteed by Art 19(1)(a) of the Indian Constitution and the restriction of the use of mobile phones in the case does not fall within the ambit of reasonable restrictions as under Art 19(2).
7. Shirin also argued that as she has attained the age of majority as under Indian Majority Act, 1875, the Hostel has no right to interfere with her right to use her mobile phone and the forceful seizure of the device infringes her Right to Privacy as guaranteed by Art 21.
Arguments from the Respondents:
1. The respondents argued that they acted within their authority as they were obliged to enforce discipline by being part of the staff of an educational institution.
2. Upon admission, Shrin and her parents had also signed an application which required her to obey the hostel’s rules and regulations during her stay.
3. The Principal stated that the new policy only came about as a response to the requests made by the parents who wanted to ensure that the students were concentrating on their studies. He further countered that there were no restrictions on the use of laptops and that Shrin was the only student to complain.
4. 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.
Held:
1. Firstly, the Bench deliberated whether a student has a right to stay in a hostel and whether the college has any obligation to permit a student to stay in the hostel. As per the provisions of Calicut University First Ordinances, 1978 all students who do not reside with their parent or guardian are to reside in the residences maintained by the college/university. The Court established that the college is under an obligation to provide housing while the students have a right to stay in the hostels subject to the disciplinary controls of the Hostel Warden and Matrons.
2. Next, the Court questioned whether the imposition of the restriction of usage of mobile phones during study hours amounted to an infringement of fundamental rights. The court opined firstly on the benefits of online learning and mobile phones facilitating the exchange of ideas, group discussions, downloading of data or e-books as well participation in online courses such as the SWAYAM program of UGC, among others. The court also stated as these students are adults they were capable of taking responsibility for their studies and said that the students should be allowed to use their mobile phones “to acquire knowledge from all available sources” in order to “achieve excellence and enhance [the] quality and standard of education.”
3. The Court highlighted the submission of the petitioner Shirin which looked to Resolution 23/2 adopted by the Human Rights Council on the role of freedom of opinion and expression in women’s empowerment. The Court also emphasized the relevance of United Nations Resolution 26/13 on “the promotion, protection and enjoyment of human life on the internet” which emphasized that access to information on the Internet promotes the right to education by facilitating vast opportunities for affordable and inclusive education. It further called upon “States to promote digital literacy and to facilitate access to information on the Internet, which can be an important role in facilitating the promotion of the right to education.” Relying on Vishaka & Ors v. State of Rajasthan & Ors [AIR 1997 SC 3011], 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. Accordingly, the Court concluded that “the right to have access to Internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India.”
4. While delibrating on the need to safeguard freedom of expression in the digital age in accordance with this case, the Court recalled S.Rengarajan and others v. P. Jagjivan Ram [(1989) 2 SCC 574], where it was held “…censors should be responsive to social changes and they must go with the current climate …; freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people … [and] can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity ….” Following that reasoning, despite the legitimate supervisory role played by principals and wardens, the rules at the court held that hostel policies should be “modified in tune with modernization of technology,” to ensure students can benefit from all sources of knowledge, insofar as to not disturbing other students.
5. Having found the restriction to be unreasonable, the Court ordered Shirin’s immediate re-admittance to the Hostel. In closing, the Court cautioned Shirin and other residents to avoid disturbance by the use of mobile phones in the Hostel and Shirin’s parent to avoid doing anything that is humiliating to the college or Hostel authorities.
Edited by Sree Ramya
Approved & Published – Sakshi Raje
