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Monday, Oct 14, 2019

Kerala HC verdict: A victory for individual freedom

Restricting Internet access deprives people of their right to life, liberty, freedom of expression, and privacy

analysis Updated: Sep 20, 2019 20:23 IST
Gautam Bhatia
Gautam Bhatia
An instrument, essential to fulfilling rights, may be used negatively. But this cannot justify prohibiting its use
An instrument, essential to fulfilling rights, may be used negatively. But this cannot justify prohibiting its use(KERALA HIGH COURT)
         

At a time of intensive debate around the importance of the Internet, and of communication in general, a judgment by the single-judge bench of the Kerala High Court has come as an important intervention. In Faheema Shirin v State of Kerala, an undergraduate student was expelled from her hostel in Kozhikode because she refused to sign an undertaking promising to abide by the hostel rules that prohibited the use of mobile phones after 6pm in the evening until 10pm (i.e. until lights-out).

The student challenged the rules before the high court. She argued that the rules had been applied only to the girls’ hostel, and were, therefore, discriminatory. Furthermore, a ban on mobile phones — for a significant portion of the day — impacted her right to access knowledge, a right that was protected by the fundamental guarantee of the freedom of speech and expression. It also violated her right to privacy. The college argued, on the other hand, that the move had been taken due to complaints from parents regarding excessive mobile phone usage, and that the purpose of the restriction was to enable study time.

In its judgment, the high court made the important observation that “mobile phones which were unheard of once and later a luxury has now become part and parcel of the day to day life.” The court then referred to resolutions adopted by the United Nations Human Rights Council, as well as the General Assembly, that had spelt out in some detail the necessity of equal participation (of men and women) when it came to access to information, and the role played by the Internet in facilitating that access. In view of the importance of Internet access, and its link to education and knowledge, the high court affirmed that the right to be able to access the Internet was a part of the fundamental right to life and liberty, as well as privacy (a link that has been drawn in many other countries as well as in international fora). The court also noted that freedom of speech and expression included an obligation to ensure the free flow of information, and, therefore, access to the infrastructure that enabled communication (including the Internet).

Two arguments were made by the respondents to justify the prohibition. The first was that the college principal was acting in the capacity of guardian to the students, and ensuring their own well-being. The court rejected this argument, however, noting that once an individual had attained majority, it is for “[her] to decide with self confidence and self determination that she would not misuse [the mobile phone] and that she would use it only for improving her quality of education”. Second, it was argued that it was still open for the students to use the hostel library, and educate themselves by reading books. To this, the court noted that the issue was about choice — the choice of individuals to decide for themselves how, and in what manner, to access knowledge. Ultimately, therefore, the court held, the problem of abuse of mobile phones was not to be solved by imposing a coercive prohibition, but by counselling — and after that, by respecting the autonomy and freedom of adult individuals. The court thus concluded that the student’s expulsion was wrongful, and that she be readmitted to the hostel so that she could continue her studies.

The high court’s judgment is an important one, even though the facts are relatively innocuous. Most important, it recognises how important and integral the Internet has become to modern life. The ubiquity of the Internet has now made it an indispensable element of accessing information. Therefore, it constitutes an essential part of the infrastructure of freedom of speech and expression — the infrastructure without which freedom of speech and expression becomes an attenuated right at best. Consequently, depriving individuals from accessing the Internet is tantamount to depriving them of their right to access information, as well as their freedom of speech and expression, and can, therefore, be justified only if compelling reasons exist.

The judgment is also important for its rejection of some of the common arguments that we hear for blocking access to the Internet — that it is for the individual’s own good, and that it is essential to prevent abuse. However, the purpose of a fundamental right is defeated if it can be restricted by employing such arguments: The possibility that an instrument or a mechanism can be used for good purposes as well as bad does not justify prohibiting its use altogether, especially when that instrument is essential to fulfilling basic rights.

At a time when the central government has shut off communications for an entire state on the basis that some people might misuse the Internet for committing terrorist attacks, the high court’s judgment is a powerful reminder of the moral bankruptcy of such arguments.

Gautam Bhatia is a Delhi-based advocate
The views expressed are personal

First Published: Sep 20, 2019 20:21 IST

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