Defender of your Digital Freedom

All Posts | Aug 02,2019

SFLC.in impleads in Kerala HC Against Denial of Internet Access to Female Residents

An undergratuate student at Sree Narayana College, Chelanur, Kozhikode, Kerala has filed a petition in Kerala High Court against discriminatory hostel rules for female residents and arbitrary restrictions on accessing internet and electronic devices. According to the petition, the hostel rules deny residents of girls’ hostel from using mobile phones between 6 pm to 10 pm. Further, undergraduate students are not allowed to use laptops in hostel premises. In order to enforce the rule, the residents are required to deposit their mobile phones to the hostel authorities every evening at 6 pm.

Reliefs sought by petitioner include declaration of rules banning use of mobile phones between 6 p.m. to 10 p.m. as violative of the Constitution. SFLC.in joined the proceedings as a party by filing an impleadment application in the Hon’ble High Court. In the said application we raised the importance of internet and use of digital resources to learn and communicate.

Students had earlier raised concerns regarding this unreasonable rule to the Deputy Warden of the Women’s Hostel. Instead of having an open discussion on students’ grievances, they were informed by the authorities that those not willing to abide by the hostel rules would be required to vacate their hostel rooms. Receiving no reasonable response from hostel administration, the Petitioner thereafter approached the college Principal with her grievance. The Principal asked her to state in a letter that she was unwilling to abide by the rule. Upon doing so, instead of relaxing the arbitrary rules, the Petitioner was asked to vacate her hostel room on a short notice of 12 hours. Thereafter, her room was locked by the administration and she was not even allowed to collect her personal belongings.

The restrictive, arbitrary rules raise issues concerning violation of constitutional rights including Article 14 and Article 19(1)(a). The petition, while claiming grounds under Article 19(1)(a), cites the Apex Court in The Secretary, Ministry of Information and Broadcasting v Cricket Association of Bengal & Anr. [1995 AIR 1236] which held that “The freedom of speech and expression includes right to acquire information and to disseminate it” and “The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc.” Further, the Hon’ble Supreme Court in Shreya Singhal v Union of India [AIR 2015 SC 1523] held that, “If the right to freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial. The virtues of the electronic media cannot become its enemies. It may warrant a greater regulation over licensing and control and vigilance on the content of the programme telecast. However, this control can only be exercised within the framework of Article 19(2) and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures.”

The petition also submits that ‘the restrictions placed on the use of internet through the restriction on the use of phones and laptops hinders development and personal growth of these young, bright and impressionable students.’ It takes support of ND Jayal v. Union of India [2004 (9) SCC 362], where ‘the right to development was held to be an integral part of the right to life under Article 21.’

Further, as per the petition, the hostel rules contravene UGC (Promotion of Equity in Higher Educational Institutions) Regulations, 2012; principles embodied in Convention on the Elimination of All Forms of Discrimination against Women, 1979, Beijing Declaration. Further, the hostel administration does not provide a reference library to residents to aid the learning process post college-hours. Accessing learning resources over the internet thus becomes a necessity for students.

Also, while raising that hostel residents have a reasonable expectation of living in their private space while in hostel, the petition cites Justice Puttaswamy (Retd.) and Anr. v. Union of India and Ors [2017 (10) SCC 1] wherein the Hon’ble Supreme Court held that “Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality” and “The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life.” The petitioner states that ‘As adults, the students are entitled to their freedom to choose whether to use or not use mobile phones or laptops, and the unreasonable restriction on the same imposed by the college is unconstitutional.’ Further, support was taken from Honourable Supreme Court’s judgment in Shafin Jahan V. Asokan K.M. & Ors. [2018 (2) KHC 890] observed that parents of the adult inmates do not have the liberty to decide what the just way of life or correct course of living as far as their children are concerned ought to be.

SFLC.in in its impleadment application submitted, ‘Internet is the greatest equalizer in our history. It makes it possible for anyone from any background and any standing in society to be able to access any information at the touch of a button. No longer are we restricted by the physical limitations caused by the lack of skilled and knowledgeable teachers and access to books, journals, newspapers and other written material.’ Further, pointing at the educational courses available online, the application said, ‘Over the past few years, there has been a rise of Massive Online Open Course (MOOC) platforms – these are platforms on which people from across the world can access educational courses taught by professional teachers. The quantum of knowledge available online is increasing every day. Arbitrarily restricting the ability to access this information puts female inmates of the college at a serious disadvantage compared to male inmates of the hostel, students that do not stay in hostels, and students of other colleges.’

These arbitrary restrictions exemplify the irony behind the student entrepreneurship programs and schemes like ‘Digital India’ that encourage internet access while in actuality students are pushed back to orthodox learning practices. It is unrealistic to expect from students to subsequently become future leaders with scientific temper, torch-bearers of innovation and build India-based start-ups when we fail in putting minimal trust by denying them use of mobile phone and laptops. The time students get after-class gives them a chance to reflect them on their day’s learning. Since internet now provides them an opportunity to clarify any query they might have, restraining them to access the same and expecting them to ‘find the answers’ from the standard text-book sources makes their knowledge localized. They are denied access to latest developments, and varied perspectives on issues concerning their education.

This directly contradicts Kerala Information Technology Policy, 2017. The objectives of this Policy include, among others, ‘Partnering with schools, technical education institutions and broader academia is planned to achieve these (policy) goals’; ‘Ensure Universal Open access to data, information and knowledge resources in a digital domain. Enable access of content and ICT applications to the differently-abled’. Further, Mobile Governance is a focus area of the Policy towards developing ‘Digitally Empowered Citizens’. Additionally, the Respondent College’s affiliating university i.e. University of Calicut has itself promoted and taken steps towards use of technology in higher education. The University is active in developing (Massive Online Open Courses) under Indian e-learning platform SWAYAM. It is aimed at bridging digital divide for students who have hitherto been untouched by the digital revolution. The University is the host institution for 13 MOOCs. Restraining students from accessing internet would deprive them of rich educational content available on the SWAYAM platform.

SFLC.in remains resolved to defend digital rights of users and to promote free and open internet access. Please stay connected with us for updates on the case.

All Posts | Sep 27,2017

Notable technology and rights related litigations

Below is a compilation of some notable technology and rights related litigations from India, on-going and concluded. This list includes matters filed before the Indian Supreme Court as well as various High Courts, and covers the broad topics of Privacy, Aadhaar, Intermediary Liability, Free Speech, and Right to be Forgotten.

Image credit: Legaleagle86 at en.wikipedia [CC BY-SA 3.0 or GFDL], via Wikimedia Commons

All Posts | Jan 05,2017

Aadhaar on trial: The litigations around Aadhaar

The development of Aadhaar over the years has opened a Pandora’s box of litigations against its various claims and processes that range on the spectrum from privacy rights to compulsory carrying of Aadhaar cards by drivers. Prior to the drafting and operation of the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 (hereinafter Aadhaar Act), the Aadhaar scheme was challenged by many petitions, tagged together under the case of K.S. Puttaswamy & Ors. v. Union of India & Ors. However, upon the notification of the Act and various Regulations therewith, fresh petitions have been filed challenging the Aadhaar Act and the Rules in S.G. Vombatkere and Anr. v. Union of India & Ors. Apart from these, there have been a multitude of petitions filed around the Aadhaar scheme and its usage by various state agencies in several forums across the country.

(A detailed time-line of the Aadhaar scheme can be accessed here)

Initial petitions: The pending case of Justice K.S. Puttaswamy & Ors. v. Union of India & Ors.(W.P.(C) 494/2012), was the first in the series of cases challenging the Aadhaar scheme. The case, along with 15 other matters tagged along with it,is currently pending before the Apex Court, after being referred to the Constitution Bench in 2015. The latest orders issued in this case on 11th August and 15th October, 2015 effectively held that until the issues in the pending case can be decided with finality by the Supreme Court, the use of Aadhaar card is not only purely voluntary, but can only be used on this voluntary basis for six Government schemes i.e. Public Distribution System, LPG, Mahatma Gandhi National Rural Employment Guarantee Act, Employees’ Providend Fund Organization, Pension scheme, and Prime Minister’s Jan Dhan Yojna. Moreover, it also mentioned that no one should be denied any services or benefits that they are rightfully entitled to for the lack of an Aadhaar card.

(Our notes from hearings of this case can be accessed here)

Contempt: In the year that followed the above mentioned orders, there have been innumerable news reports of activities that would tantamount to contempt of these orders. We have attempted to record the violations of these orders where Government agencies and private bodies have not only used Aadhaar for purposes ranging from applying for Padma Shri awards to filing Income Tax appeals, but have also made it mandatory in many cases. A non exhaustive catalog created by us from news reports on these violations can be accessed here. Owing to the massive scale of these incidents, contempt petitions were recently filed in the Supreme Court, in the case of Mathew Thomas v. K.D. Tripathi and Anr. (Contempt Petition(C) 444/2016). Col. Mathew Thomas is also one of the petitioners in the cases tagged under the above-mentioned K.S. Puttaswamy v. Union of India. As these claims arise from the orders given in K.S. Puttaswamy v. Union of India, the Supreme court has connected the contempt proceedings to it and are thereby, pending further listing and hearing.

Scholarship row: The Ministry of Minority Affairs, through a letter dated 14th July, 2016 had made Aadhaar a mandatory requirement to apply for the Pre-Matric, Post Matric, and Merit Scholarship schemes for the years 2016-2017, along with making the registration possible solely through an online platform. This is a scheme that provides scholarships to students of recognized minority communities for high school education on the basis of certain criteria. This order was challenged before the Supreme Court as well as the Delhi High Court in two separate petitions.

  • Supreme Court: In the case of All Bengal Minority Students Council and Anr. v. Union of India and Anr. (W.P.(C) 686/2016), the Supreme Court drew attention to the last order by the five Judge Bench on 15th October, 2015 in the case of K.S. Puttaswamy v. Union of India, where it made the use of Aadhaar card purely voluntary, and ordered to stay the implementation of the letters issued by the Ministry of Minority Affairs that made Aadhaar compulsory for applying for Pre matric, Post matric and Merit based scholarships. In this order dated 14th September, 2016, a two Judge Bench also asked the Ministry of Electronics and Information Technology to remove the mandatory requirement for Aadhaar from the National Scholarship Portal as well.

  • Delhi High Court: In a petition filed by the Nasimuddin Educational and Charitable Trust (W.P(C) 7931/2016) that challenged the same orders by the Ministry of Minority Affairs, the Delhi High Court acknowledged the order passed by the Supreme Court on the issue in the above mentioned case. However, it recognized that the Apex Court had not provided any insight on the mandatory online application for the scholarships. Therefore, on the exclusionary nature of the application procedure by limiting it to only online applications, the Delhi High Court has agreed to hear the case on 7th December, 2016 subsequent to the filing of a response by the Union of India and other respondents. Although the Delhi High Court website states that this case was disposed off on 7th December, 2016, details of any order or judgment are unavailable on their online portal.

Mandatory for PDS: It was reported that upon Aadhaar being made mandatory by Karnataka State Government on 29th July, 2016 to avail benefits of Public Distribution System (PDS), a petition was filed challenging it. The High Court has subsequently as per the reports issued notice to the State and district governments in this regard.

(We have been unable to locate and procure the official records/ documents of the case, and would appreciate assistance/information regarding them)

Need to carry Aadhaar card while driving: In a press release, reportedly issued by the Cyberabad Police Commissionerate on 23rd July, it was said that Aadhaar card has been made mandatory to be carried alongside other relevant documents for people driving any vehicle in Telangana. Challenging this compulsion, the Hyderabad High Court in an order reported to be issued on 18th October, 2016 has asked the Police commissioner to justify the legal basis for mandating carrying of Aadhaar card for all drivers.

(We have been unable to locate and procure the official records/ documents of the case, and would appreciate assistance/information regarding them)

Challenge to Aadhaar Act: The Aadhaar Act was proposed in the Lok Sabha by the Government as a money Bill as the core component of the Act was sought to be the distribution and dispersal of subsidies and benefits from the Consolidated Fund of India. It was passed in the Parliament on 1st March, 2016. (Our report on the parliamentary proceedings and discussions on the Aadhaar Bill can be accessed here)

The challenges to this Act have been two fold, with one petition challenging the passing of this Bill as a money Bill, and the second one alleging that the Act and the subsequent regulations passed therein are unconstitutional. A brief synopsis of these two petitions pending in the Supreme Court is as follows:

  • Money Bill challenge: Jairam Ramesh, the former Union Rural Development Minister filed a public interest litigation in the Supreme Court challenging the passing of the Aadhaar Act as a money Bill, alleging that the Bill did not qualify for an action under Article 110 of the Constitution that provided criteria for categorizing Bills as money Bills. In the hearing that took place on 10th May, 2016, it was argued in the case of Jairam Ramesh v. Union of India (W.P.(C) 231/2016) that the Aadhaar Act did not comprise solely of management of funds of the Consolidated Fund of India, instead it was only a part of the Bill that included amongst other things, the roles and responsibilities of enrollment agencies, requesting entities, and authentication agencies, and the information to be given to users. The Attorney General argued that as the determination of a Bill as money Bill is at the discretion of the Lok Sabha Speaker, it was not open for judicial review by the Supreme Court. The case is next scheduled for hearing on 13th February, 2017.

  • Challenge to the Aadhaar Act: A fresh petition, S.G. Vombatkere & Anr. v. Union of India & Ors. (W.P.(C) 797/2016) challenging the Aadhaar Act and the subsequent Rules and Regulations released therein was listed in the Supreme court on 21st October, 2016. However, as the petition was listed before a bench that included Justice L.N. Rao, who had previously represented the Union of India as the Additional Solicitor General in the earlier Aadhaar petitions, the Supreme Court ordered the matter to be listed before a different bench to eliminate any conflict of interest. Further, at a subsequent hearing that took place on 28th October, 2016, notice was issued to the Union of India in this case by the Apex Court. On 5th January, 2017, this case was mentioned in front of CJI Khehar, and Justices N V Ramana, and DY Chandrachud, to be heard on an urgent basis due to the privacy concerns involved and the collection of biometric data by private entities as well. However, the Supreme Court refused to expedite the process and reportedly said, “We are not inclined to give immediate hearing as there are limited resources but biometric data collection by private agencies is not a great idea.”

Watch this space for updates on these cases/other cases around the Aadhaar scheme.

Image Credit: Wikimedia Commons CC-BY-SA 4.0 International