Legal Matters | Kerala High Court reminds us that adults can decide for themselves

A college-run women’s hostel in Kozhikode, Kerala, imposed a ban on usage of mobile phones between 6 pm and 10 pm, and required students to deposit their phones with the warden. All acquiesced, but one, leading to her ejection from the hostel. A writ petition filed in the High Court of Kerala against this has given way to what is probably one of the most important judgments in recent times [Faheema Shirin R.K. vs State of Kerala & Ors.], and a strong statement from the judiciary underlining personal autonomy and the right of adults to take decisions for themselves.

The college authorities, in their defence before the court, argued that at the time of admission, the student had agreed to abide by rules imposed by the hostel, and that the restriction on mobile phones was just one of such rules; that the girl had not made any request explaining any inconvenience she faced due to the rule; that all other students had agreed to the rule; that the student was free to use the laptop as well as books during the time to study; and that when the father of the girl was summoned, he spoke arrogantly, disregarding that he was summoned by a teacher of his daughter.

In an increasingly rare example of non-patronising reasoning by a court, the high court considers each of these arguments and puts its feet foot down in defence of the girl’s decision to resist an arbitrary rule. Observing that the students in the hostel had attained the age of majority, the court stated that no student can be compelled to use or to not use a mobile phone; that it is for the student to ‘decide with self-confidence and self-determination’ that she would not misuse it (another allegation was that mobile phones were susceptible to misuse), and that no other students objected to the restriction, or that all others obeyed the restriction, would not make the restriction legal if it was otherwise illegal.

While the court accepted the college authorities’ right to make rules to enforce discipline, it asks, “is there any justification in imposing such restrictions”, going as far as to say that it “would not be proper to impose such restrictions of college-going age even if it as at the request of the parents”. It then underlines that it is for the student to choose by what method she wishes to gain knowledge, and that while one student might wish to garner knowledge through books in a library, another might be interested in e-books or downloading data.

Contrast this with the multiple cases recently where the court appropriated the role of parens patriae of young women, and sat in judgment over their decision to marry men who her parents did not approve of, even after the respective girls had conveyed to the court that they had taken conscious decisions to be married to, and continue with their respective partners. Or the many recent cases where judges have expressed their displeasure in students protesting against what they felt were unacceptable practices at their educational institutions, advising them to ‘focus on studies’.

This reasoning will also hopefully weigh on several other cases being presently heard in courts across the country, such as, whether online streaming services ought to be censored by the government. One oft-forgotten facet of the right to live with dignity is the ability to make one’s own choices, as long as they are within the law, and do not infringe on anybody else's rights, without the State fretting over the corruption of the person — mind, body, or soul, a role that the Constitution did not envisage the State being in.

Interestingly, contrary to popular reportage, the judgment did not lay down a ‘fundamental right to Internet access’ or ‘to use mobile phones’, apart from saying that the right to Internet access is already enshrined in a resolution adopted by the UN Human Rights Council, which is to be read into our fundamental rights. In fact, the judgment referred to the recent case of Sabu Mathew Varghese vs Union of India where the Supreme Court directed Google and its peers to take down links that advertised sex selection tests to discover gender of the foetus, a practice prohibited under law, indicating that such a right was not absolute.

Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.