Justice P.V. Asha of the Kerala high court advanced the cause of fundamental human freedoms by seven league boots on Thursday, as she held that the right to have access to the Internet was a part of the fundamental right to education as well as privacy under Article 21 of the Constitution.
She struck down the hostel rules of a Kozhikode college which banned the use of mobile phones for girl students between 6 pm and 10 pm and prohibited the use of laptop computers in the hostel premises.
She cited in her ruling the UN Human Rights Council, according to which the right to Internet access “is a fundamental freedom and a tool to ensure the right to education”.
She also cited the Supreme Court in Vishakha and Ors versus the State of Rajasthan and Ors (AIR 1997 SC 3011) wherein it was held that in light of Article 51(c) and Article 253 of the Constitution, and the role of the judiciary envisaged in the Beijing Statement (international conference for the elimination of all forms of discrimination against women, 1979), and observed that international conventions and norms must be read into the fundamental rights in India “in the absence of enacted domestic law” in the field.
In the context of the hostel case before her, the judge noted the only restriction to be imposed was that mobile phone use should not create a disturbance for other students.
In 2016, the UN Human Rights Council had released a non-binding resolution condemning the “intentional disruption” of Internet access by governments.
Several governments worldwide, in one form or another, either through outright enactment or judicial rulings, have lent their support to this important aspiration. India was not one of them. It remains to be seen if the Kerala high court order will
override the “non-binding” aspect of the UNHRC resolution.
Even so, going by Article 19 of the Universal Declaration of Human Rights, everyone has the right to freedom of opinion or expression, and this right includes “the freedom to seek, receive and impart information and ideas” through any means “regardless of frontiers”.
Indeed, the “right to the freedom to connect” and access the Internet has been held as a “fundamental human right”.
In their eagerness to control, restrict and withhold channels of information and communications — as has happened in Kashmir recently —with the stated objective of subduing disorder and terrorist violence, governments, as in China and now in the Valley, have deprived entire populations of the “fundamental human right” to the Internet. The Kerala judgment is a dampener in that regard.
It is yet to be seen if the authorities in India will argue for a larger bench or a Constitution Bench of the Supreme Court to modify the order of the one-judge bench in Kerala, in light of its sweeping implications for its policy of sustained repression in Kashmir.