Title of the case: Faheema Shirin R.K vs State of Kerala and others on 19 September, 2019
Citation: WP(C)No.19716 OF 2019(L)
Court: THE HIGH COURT OF KERALA
Bench: THE HONOURABLE SMT. JUSTICE P.V. ASHA
Petitioner: FAHEEMA SHIRIN R.K
Respondent: STATE OF KERALA AND OTHERS
Brief Facts: This writ petition was filed by a 3rd semester BA Student aggrieved by her expulsion from the hostel. She has been staying in the hostel run by the college which is an aided college affiliated to University of Calicut. Inmates of the hostel were not allowed to use their mobile phones from 10 pm to 6 am within the hostel and undergraduate students were not allowed to use laptop also in the hostel. Again, the duration of the restriction in using the mobile phones was changed from 6 p.m. to 10 p.m. Petitioner with other inmates of the hostel went to meet the Deputy warden for explaining the inconveniences caused to them due to the restrictions but she didn’t respond. Warden sent a Whats App message informing that those who do not abide by the rules would have to vacate the hostel. She thereupon approached the Principal and submitted a letter requesting to relax the restrictions. Thereupon, a letter was obtained from her in writing to the effect that she was not willing to abide by the new rule restricting usage of phone between 6 p.m. to 10 p.m. Thereupon her parents were asked to meet the Principal and informed them that the petitioner has to vacate the hostel as she refused to abide by the rules. They issued a memo to her directing her to vacate the hostel immediately and conducted a meeting of the hostel inmates where students were informed about the action taken against her and asked to give in writing their willingness to abide by the restrictions. She submitted a leave letter as it was not possible to attend the classes since she had to travel 150 km every day. When she reached hostel to vacate the room, it was seen locked and the hostel authorities did not allow her to take her belongings.
ISSUE: Whether the restrictions imposed by the hostel authorities on use of mobile phones while enforcing discipline has infringed the fundamental rights of the petitioner?
Argument of Respondent:
- The change in duration of the restriction for use of mobile phone was stated to be affected based on the request of some of the parents. The petitioner was admitted in the hostel based on application in which she along with her father had signed agreeing to abide by the rules of the hostel and to obey the directions of the hostel authorities.
- On receiving complaints from parents regarding the excessive usage of mobile phones in the hostel for women, a meeting was convened on 19.06.2019 in which it was unanimously decided to restrict the use of mobile phones from 6 p.m. to 10 p.m. onward in order to see that students are utilizing their study time for study purposes only; the decision was communicated to all the inmates of the hostel by the respective Deputy Wardens
- Petitioner father also informed warden of hostel that he does not have any problem if his daughter used the mobile phone. Warden complaint to principal explaining the humiliation she suffered from the petitioner’s father; her father also came to college and shouted at warden in front of students =, parents and other teachers accusing them for having banned the usage of the mobile phone in the modern age, despite this warden did not took any action against him. They already told them that she can either choose to follow the instruction or to leave the hostel in case she is not willing to abide by the instructions. Her parents were also present at the time of meeting to implement the restriction imposing the usage of the mobile phone where they behaved rudely with the vice president. Also, when petitioner and her parents agreed to abide the instruction, they are not expected to object the same.
- It is stated that there is restriction in the boys’ hostel also in the usage of mobile phone, which is between 6 a.m. and 9 a.m. and from 4 p.m. to 6.30 p.m. except on Sundays and from 10 p.m. on all days
- According to the warden, the college is having a full-fledged library with more than 30,000 books which the students can utilize and therefore acquiring knowledge through internet alone between 6 p.m. and 10 p.m. cannot be said to be an unreasonable restriction. It is further stated that in case the petitioner wants to gather knowledge through internet, she is free to use laptop for which there is no restriction
- In Sojan Francis v. MG University:2003, Unniraja v. Principal Medical College 1983, Manu Vilson v. Sree Narayana College 1996 and etc it is stated that supreme authority to control and enforce discipline in an educational institution is the head of the institution; the authorities of the college as well as the hostel are entitled to take suitable measure to maintain discipline; it is the duty of the members of the teaching staff to take appropriate measures to achieve excellence in education; it is the duty of the institution which imparts education, to maintain discipline and to enforce the rules and regulations which are lawfully framed, stating that the rules are not designed to curtail any fundamental right Argument of Petitioner:
- Petitioner or her parents were never notified of any hostel meeting or PTA meeting before the implementation of the rule of restriction on mobile usage
- This restriction is only imposed in the girls’ hostel which amounts to discrimination based on gender which also violated Clause 5 of UGC. UGC stated in (Promotion of Equity in Higher Educational Institutions) Regulations, 2012 mandates the college authorities to take appropriate measures to safeguard the interests of the students without subjecting them to discrimination based on gender, caste, creed, religion, language etc
- The object behind introducing such restriction is to see that the students are utilizing their study time for study purposes alone. The respondents have not stated whether usage of mobile phone by the petitioner or by any inmate caused any disturbance to other inmates. Therefore, indiscipline comes only to the extent of disobedience of an instruction.
- When the state government was exploring the possibility of digital learning even from the school level like Education department has introduced QR Code in text Books enabling the students to scan it and read the lessons and allied topics and watch the videos in their mobile smart phones or tablets then such restrictions are imposed by college authorities. As not giving her this right, she is deprived of the access to the source of knowledge which is also affecting the quality of education.
- Also, UGC has issued (Credit Framework for online learning courses through SWAYAM) regulation advising the Universities to identify courses where credits can be transferred to the academic record of the students for courses done on SWAYAM. It is therefore stated that such restrictions would deprive the students of their opportunity to have access to the SWAYAM platform. internet is mainly done through mobile phones due to non-availability of wi-fi facility in the hostel.
- It is claimed that the right to access internet forms a part of freedom of speech and expression guaranteed under Article 19(1)(a) and the restrictions imposed do not come within reasonable restrictions covered by Article 19(2) of the Constitution of India.
- Ordinances of Calicut University provides residence for students in clause 7, those students who are not residing with his/her parents or guardian shall be required to reside in any of the hostels maintained by the University or by the institutions affiliated to the University or in hostels or lodgings recognized by the University in Clause 4, Therefore, going by the provisions the students have a right to residence in the college hostel/a hostel recognized by the syndicate and the college has an obligation to provide accommodation in the hostel, to the students who are residing far away from the college/away from their parents.
- Petitioner also relies on the judgment of the apex court in Anuj Garj v. Hostel Association of India: (2008), Shreya Singhal v. Union of India : (2015), PUCL v. Union of India: (1997) and etc for the restrictions imposed as well as her expulsion consequent to it are illegal as it infringed her fundamental right to freedom and expression, right to privacy, right to education as well as their right to property under Art.300A. It is therefore argued that the restrictions have invaded her fundamental right to privacy guaranteed under Article 21 of the Constitution of India. As being an adult, nobody has authority to interfere with her freedom to use the mobile phone. Modification of rules on basis of parental concern and switching off electric lights by 10 p.m. violated their right to freedom, right to privacy and infringement on her personal autonomy as well as other inmates.
- Though it is true that the Principal of the college is the supreme authority to enforce discipline and that there cannot be any dispute that rules and regulations lawfully framed are to be obeyed by the students and that teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education for maintaining excellence of education, the rules should be modified in tune with the modernization of the technology so as to enable the students to acquire knowledge from all available sources. It would be open to the authorities in the hostel to supervise whether any distraction or disturbance is caused to other students on account of usage of mobile phone or take action when any such complaint is received. The total restriction on its use and the direction to surrender it during the study hours is absolutely unwarranted.
- It is pertinent to note that the learned counsel for the college vehemently argued that in the absence of any challenge to the rules and regulations, the petitioner cannot be heard to challenge the action taken in accordance with the rules. But in this case the rule was that the mobile phones shall not be used in the hostel. Therefore, what remains is only the decision/instruction restricting/banning the use of mobile phone from 6 pm to 10 pm and the direction to surrender the mobile phone to the warden. When it is already found that such an action infringes the fundamental freedom as well as privacy and will adversely affect the future and career of students who want to acquire knowledge and compete with their peers, such instruction or restriction cannot be permitted to be enforced.
- While enforcing discipline it is necessary to see the positive aspects of the mobile phone also. As held by this Court in the judgment in Anjitha K.Jose’ case (supra), the restriction should have connection with the discipline and when there is nothing to show that there was any act of indiscipline on account of the usage of mobile phone by the petitioner, that cannot stand. The fact that no other student objected to the restriction or that all others obeyed the instructions will not make a restriction legal if it is otherwise illegal. No student shall be compelled either to use mobile phone or not to use mobile phone. It is for each of the students to decide with self-confidence and self-determination that she would not misuse it and that she would use it only for improving her quality of education.
- The only restriction that can be imposed is that they should not cause any disturbance to other students. While acting in exercise of right to privacy, persons like the petitioner shall also see that such exercise does not invade the right to privacy of another student residing in the hostel especially in her room.
- At any rate, it is not fair on the part of a parent to shout at the teachers or warden or Principal if at all their action was not acceptable to him. Such practices of humiliating the teachers, that too, in front of the students and the public is not fair or proper and is not expected from educated parents and hence deprecated. However, what is to be considered in this case is the unreasonableness of the restriction consequent to which the petitioner is expelled.
- As per the University Regulations as well as the UGC Regulations, the college is bound to run a hostel to enable the students to reside near the college in order to enable them to have sufficient time to concentrate in their studies. Therefore, the hostel authorities are expected to enforce only those rules and regulations for enforcing discipline. Enforcement of discipline shall not be by blocking the ways and means of the students to acquire knowledge.
- In view of the aforesaid reasons, imposing of such restrictions is unreasonable and therefore the respondent shall re-admit the petitioner in the hostel without any further delay. It is made clear that the petitioner or her parent shall not do any act in a manner humiliating any of the respondents or any other teacher or warden or Matron in the hostel/college. The petitioner or any other inmate shall also see that no disturbance is caused to others by usage of mobile phone in the hostel.