Content Regulation / Censorship, Privacy, Data Protection and Retention
Dagenais v. Canadian Broadcasting Corp.
Closed Expands Expression
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The High Court of Kerala held that a restriction imposed on the use of mobile phones in a women’s hostel was an unreasonable infringement upon the right to access the internet, the right to privacy, and the right to education. Fareema Shirin, a student, brought the challenge after being ordered to vacate college housing for refusing to comply with a rule restricting mobile phone usage during designated hours. The Court relied on international conventions to find that the hostel had an obligation to ensure women’s online freedom of expression and that digital resources offer important opportunities for affordable and inclusive education necessary to advance students’ careers. The Court ordered the College to modernize the policies so they do not discriminate based on gender or undermine students’ access to educational resources. Finding the restriction to be “absolutely unwarranted,” the Court further ordered Shirin’s immediate re-admission to the hostel, and declared that the right to access the Internet has become part of the right to education as well as right to privacy under Article 21 of the Constitution of India.
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 (Hostel) run by the college. Shirin brought the challenge in response to 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.
The respondents included the State of Kerala, The University of Calicut, The University Grants Commission (UGC), the Principal of Sree Narayaguru College, and the Deputy Warden and Matron of the Women’s Hostel.
Upon notification of the new rule, Shirin complained to the Deputy Warden, the Matron and the Principal that the restriction was inconvenient and that she could not abide by it. In a meeting with the Shirin’s parents, the Principal informed them that she would have to comply or vacate the hostel immediately. Subsequently, all residents of the Hostel had to document their willingness to abide by the restriction. Thereafter, a notice was issued to Shirin directing her to vacate the hostel within 12 hours. The loss of the housing made it impossible for Shirin to attend her college classes, since it would require her to travel nearly 150 km every day from home. When she arrived to vacate her room, the door was locked, and Hostel authorities did not allow her take her belongings.
Shirin argued that even though the Hostel stated that the new restriction on the use of mobile phones was at the request of some parents, her own parents were not notified of any meetings on the subject before the implementation of the rules. She also stated that the enforcement of the restriction was discriminatory as it was only imposed in the women’s hostel, in violation of Clause 5 of guidelines issued by UGC, which prohibits gender discrimination. Therefore, Shirin argued that the restriction was arbitrary and impaired the quality of education accessible to female students. Further, the restriction violated the Convention on Elimination of all forms of Discrimination Against Women (CEDAW), the Beijing Declaration and the Universal Declaration of Human Rights.
The policy also stood in stark contrast to the State’s recognition that the right to access the internet was human right, and its policy to make the internet accessible to all citizens through its “mobile first approach for e-governance services” under the Digital Kerala Vision. The restriction further undermined digital learning programs being implemented by the State and Education Department which made it possible for students to read their lessons on their smart phones and tablets.
Shirin observed that the right to access the internet forms a part of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution and the restriction of the use of mobile phone in the present case did not come within reasonable restrictions covered by Article 19(2) of the Constitution of India. Regarding to her right to privacy, Shirin stated that as she was legally an adult, the Hostel had no right to interfere with her use of a mobile phone. Moreover, the forceful seizure of mobile phones also infringed upon the right to privacy and personal autonomy of the other residents. Citing extensive case law, Shirin claimed the restriction, as well as her expulsion from the Hostel, were illegal and infringed upon her right to freedom of expression, right to privacy, and right to education among others.
The Respondents relied on case law to argue that they acted within their authority as representatives of an educational institution to enforce discipline, which was integral to their role to cultivate and guide the student’s pursuit of education. They further stated that Shirin and her parents had signed an application, before she was admitted, which required she obey the rules during her stay. The Principal claimed that the policy was implemented in response to requests by parents who wanted to be sure the students were concentrating on their studies. The Principal further countered that there was no restriction on the use of laptops and that Shirin was the only resident to complain. The Deputy Warden said she was also humiliated by Shirin’s father who allegedly criticized her harshly for banning mobile phones in the modern age in the presence of students, parents and other teachers.
The Executive Director of SFLC.IN, an organization which provides legal services to protect civil liberties in the digital world, was added as a third-party. He filed a counter-affidavit stating that restricting the usage of mobile phones and laptops in the hostels was an infringement of female students’ right to acquire knowledge through digital resources. He pointed out that many students used phones rather than laptops for their studies because they could not afford both devices, and even if they did have a laptop, sufficient wifi was not always available.
According to UNESCO, women are already at a disadvantage as they only make up a mere 30% of internet users and the Hostel’s arbitrary restriction further disadvantaged female residents in compared to their male counterparts who were not subject to the same policy. SFLC.IN argued the gender biased restriction amounted to a violation of the female residents’ freedom of expression as held in Ministry of Information and Broadcasting v. Cricket Association of Bengal & Anr AIR 1995 SC 161. In addition, the UGC Regulation 2016 (Credit Framework for Online Courses through SWAYAM) advised Universities to identify online courses for which students could receive credits, but the the impugned policy deprived students of their opportunity to have access to the SWAYAM Platform. Relying on Bennet Coleman & Ors v. Union of India AIR 1973 SC 106 he further stated that the restriction was outside the ambit of Article 19(2) of the constitution of India. Therefore, the restriction was without authority and that the confiscation of mobile phones was an infringement of the female students’ right to privacy and right to property under Article 300A of the constitution.
The Writ of Petition in this case was heard on September 19, 2019 and judgment was delivered on the same day.
Justice P.V. Asha delivered the judgment for a Single Judge Bench of the High Court of Kerala.
The main issue before the Court was, whether the restrictions imposed by the Hostel on the use of mobile phones infringed the fundamental rights of the petitioner, even if the policy was based on requests made by other residents’ parents.
The Court first examined whether a student has a right to stay in a hostel and if the college has any obligation to provide housing for students living far away from home. According to provisions of the Calicut University First Ordinances, 1978, every student who does not reside with his or her parent/guardian should reside in the residence maintained by the college/university. The Court established that the college has an obligation to provide housing, students have a right to stay in college hostels, and that student residents are subject to the “disciplinary control” of the warden and matrons of the hostel.
Next the Court turned to the question of whether the restriction prevented the students from “acquiring knowledge” during study hours from their cell phones, which could constitute an infringement upon a fundamental right.
It was the opinion of the Court that there were innumerable advantages to online learning, and mobile phones facilitated the exchange of ideas, group discussions, downloading of data or e-books as well participating in online course such as the SWAYAM program of UGC, among others. The Court observed that the students at the college were adults capable of taking responsibility for their studies, despite widespread misuse of electronic devices – including laptops. Thus, students should be able to use their mobile phones to access to the internet “to acquire knowledge from all available sources” in order to “achieve excellence and enhance [the] quality and standard of education.” [p. 18]
The Court highlighted the submission of Learned Counsel for Shirin which referenced Resolution 23/2 adopted by the Human Rights Council on the role of freedom of opinion and expression in women’s empowerment. The Resolution called upon all States to promote, respect and ensure women’s online and offline exercise of freedom of expression and to facilitate equal participation in, access to, and use of information and communications technologies. [p. 18] The Court also noted the relevance of United Nations Resolution 26/13 on “the promotion, protection and enjoyment of human life on the internet” [p. 19] 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.” [p. 19] Relying on Vishaka & Ors v. State of Rajasthan & Ors AIR 1997 SC 3011, the Court observed 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.”
In reaction to the lesser restrictions on mobile usage in the male hostel, the Court decried the prejudice that women still face in society today and found that such discriminatory treatment against women should be a thing of history. (see Charu Khurana v. Union of India (2015) 1 SCC 192) The Court also addressed parental control and quoted the Supreme Court finding that their authority is “subject to constitutional challenge on the ground of the right to privacy” and that “instead of putting curbs on women’s freedom, empowerment would be a more tenable and socially wide approach.” [p. 21] Further, in the judgment in Puttaswamy v. Union of India (2017) 10 SCC 1 the Supreme Court held that right to privacy is held to be an intrinsic part of the right to life, personal liberty and dignity and hence a fundamental right under Part III of the Constitution.
In emphasizing the need to safeguard freedom of expression in the digital age, the Court recalled S.Rengarajan and others v. P. Jagjivan Ram (1989) 2 SCC 574, which found “…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 ….” [p. 23] Following that reasoning, despite the legitimate supervisory role played by principals and wardens, the rules at the hostels should be “modified in tune with modernization of technology,” to ensure students can benefit from all sources of knowledge, insofar as they do not disturb other students.
To that end, the Court found that the restriction on mobile phone usage and its required surrender during study hours was “absolutely unwarranted.” It stressed again the UN Human Rights Council declaration that the right to access the Internet was “a fundamental freedom and a tool to ensure right to education,” and that “a rule of instruction which impairs the said right of the students cannot be permitted to stand in the eye of the law.” [p. 24] Therefore, the hostel rules infringed on a fundamental freedom as well as the privacy rights of students which could “adversely affect the future and career of students who want to acquire knowledge and compete with their peers.”
Finally, the Court held that while the Hostel authorities are expected to enforce regulations, those regulations must be in alignment with modern needs and not undermine students’ access to educational resources. 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.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression by upholding international declarations that the right to access the internet is a fundamental freedom and one that that is linked to the right to education and the right to privacy. The decision calls attention to the gender imbalance in accessing the internet and the need for states to ensure women have equal access to educational resources for their empowerment and advancement. The judgment also upholds the need to modernize policies and programs for the digital age in order for society to take full advantage of the opportunities it presents for affordable and inclusive education. This ruling may ultimately have a positive impact on promoting e-learning as an integral part of the right to education. Finally, the Court, by reading international conventions into the fundamental rights guaranteed in the Constitutional of India, strengthened India’s commitment to freedom of expression under international human rights law.
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