#BulletinBoard – The Kerala High Court just ruled that the Right to Access Internet is part of the Right to Life under Article 21-Here’s why!
The Kerala High Court just ruled that the Right to Access Internet is part of the Right to Life under Article 21-Here’s why!
The Kerala High Court (“Court”), in its decision in the case of Faheema Shirin R.K. v. State of Kerala & Ors. held that the right to have access to the internet is a part of the right to education guaranteed by Article 21A and the right to life guaranteed by Article 21 of the Constitution of India.
Rules in dispute
A student of an aided college affiliated to the University of Calicut (“College”), challenged the rules of the College hostel prohibiting the use of mobile phones and laptops in the hostel between 10pm and 6am. On bringing up her unwillingness to abide by such rules before the College’s Principal, she was asked to vacate her hostel room on short notice.
The student went on to institute a writ petition before the Court on the ground that the rules were in violation of Articles 14 (Equality before Law) and 19 (Protection of certain rights regarding freedom of speech etc.) of the Indian Constitution. It was submitted on her behalf that such rules were only imposed in the girls’ hostel, amounting to gender discrimination. In support of her allegation, she cited the UGC (Promotion of Equity in Higher Educational Institutions) Regulations, 2012 which mandates that the interests of students be safeguarded without subjecting them to discrimination based on gender, caste, creed etc. These restrictions were also stated to be in violation of the Convention on Elimination of All Forms of Discrimination against Women, 1970 (CEDAW), the Beijing Declaration and the Universal Declaration of Human Rights, which imposed obligations on state parties to take measures to prevent discrimination against women.
Relying on the State Government’s measures to promote e-governance services and high Internet penetration in the state, the right to access Internet was read into the right to life, by the counsel representing the student. It was further submitted that the hostel did not provide any library for its inmates, hence making it necessary for the students to rely on Internet resources for their academic needs.
The Court stated that in the absence of domestic norms in relation to the matter, one would have to rely on international conventions while interpreting the fundamental rights guaranteed by the Indian Constitution. This approach was followed by the Supreme Court in Vishaka & Ors. v. State of Rajasthan & Ors. (1997), where the Court relied on the provisions relating to the role of the judiciary in the Beijing Statement, in order to arrive at its decision. It was specifically stated, however, that international conventions could be read into fundamental rights only when there was not inconsistency between them.
The Court finally held that an absolute restriction on the use of mobile phones and laptops was in violation of the right to education and the right to privacy read into Article 21 by the Supreme Court in Justice Puttuswamy v. Union of India, though the hostel was entitled to impose restrictions to prevent disturbance of other inmates due to such use.
Restrictions on the access to Internet have been a major topic of discussion in India ever since the imposition of a curfew in the erstwhile state of Jammu and Kashmir, followed by a statewide Internet shutdown. Though the right to access the Internet has been recognized by the United Nations to be a human right, the Internet ban in Kashmir was the 51st time it took place in India in the year 2019. Out of the 196 internet bans that had been ordered across the world in 2018, the Indian government had ordered 134, out of which the lion’s share was attributable to the erstwhile state of Kashmir (47%). Governments both in India and across the world have justified such shutdowns on the grounds of them being reasonable restraints to the freedom of speech and expression for reasons of national security. Whether such justification is tenable or not is yet to be seen.
A commendable aspect of the decision is reading the right to Internet access into the right to education guaranteed under Article 21A. The extent of Internet penetration that exists today, across regions and classes, though not sufficient in countries like India, is quite substantial. As a consequence of it, the informational value of the Internet is significant, and the Court has managed to capture the same in its rationale for the decision (para 12 of the judgment). The Court’s decision at such a time is laudable, and it is yet to be seen whether the Supreme Court follow’s in its footsteps.
Disclaimer: This post has been prepared for informational purposes only. The information/or observations contained in this post does not constitute legal advice and should not be acted upon in any specific situation without seeking proper legal advice from a practicing attorney.