# Ajay Singh v. Union

- **Citation:** (2020) 2 ILRA 400
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-02
- **Case number:** Writ C No. 32955 of 2019
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-singh-v-union-45296
- **Pages:** 39

## Headnote

A. Constitution of India - Fundamental
Rights - Nature - The text of the Constitution,
is a conceptual philosophy of fundamental
rights, and not an exhaustive guide to
fundamental
rights
-
The
text
of
the
Constitution is fixed, fundamental rights are
always evolving. This is the essence of
constitutional law jurisprudence - Evolution of
constitutional law rights are guided and
controlled by the text of the constitution, long
settled judicial principles of interpretation of
the constitution, and judicial precedents in
point - The march of law is also assisted by
consensus of values, in the comity of civilized
nations. (Para 39 and 40)

B. Constitution of India - Article 21 -
Human dignity - Means and Scope -
Human dignity made a decisive contribution in
the development of the rights of life and
liberty, in jurisprudential systems of free
societies across the world - Consistent and
high authority have thus entrenched human
dignity as fundamental to right to life, which
flows from Article 21 of the Constitution of
India. (Para 77, 106)

C. Constitution of India - Article 21 -
Validity
of
Punishment
-
Imposed
on
delinquent student - Punishment has to be
effective to serve its purpose; however, it
cannot be purblind to human dignity, if it is to
retain its constitutionality - Degree of injuries
to self esteem, extent of degradation of human
worth, depth of humiliation caused by the
punishment, are facts to be probed in an
enquiry into the validity of the punishment -
Punishment for deviant conduct, cannot be so
severe as to degrade human life. Every form of
punishment
should
protect
the
essential
sanctity of human life and comport with
fundamental norms of decency evolved by a
civilized society. (Para 117, 119 and 121)

D. Constitution of India - Article 21 -
Rehabilitation and Reformation - Absence of an
environment of reform, self development and
rehabilitation in a university, denies the
opportunity of redeeming one's reputation -
The individual is permanently discarded by the
institution, and loss of human self worth is total
- This system of punishment is destructive of
fundamental elements of human dignity, and
violative of Article 21 of the Constitution of
India - Held, The impugned action taken by
the university, against the petitioner is violative
of the fundamental right of human dignity of
t

## Text

_Characters 0–39,920 of 122,038. This is a partial read: ask again with offset=39920 for what follows._

400 INDIAN LAW REPORTS ALLAHABAD SERIES

21. Reference may also be had to the
case of Bharat Singh Vs. Management
Of New Delhi Tuberculosis Centre, New
Delhi
&
Ors.,
where
purposive
interpretation safeguarding the rights of
have-nots was preferred to a literal
construction in interpreting a welfare
legislation, and it was held as follows:-

"11. ...the court has to evolve the
concept of purposive interpretation which
has
found
acceptance
whenever
a
progressive social beneficial legislation is
under review. We share the view that
where the words of a statute are plain and
unambiguous effect must be given to
them. Plain words have to be accepted as
such but where the intention of the
legislature is not clear from the words or
where two constructions are possible, it is
the court's duty to discern the intention in
the context of the background in which a
particular Section is enacted. Once such an
intention is ascertained the courts have
necessarily to give the statute a purposeful
or a functional interpretation. Now, it is
trite to say that acts aimed at social
amelioration giving benefits for the havenots should receive liberal construction. It
is always the duty of the court to give such
a construction to a statute as would
promote the purpose or object of the Act.
A construction that promotes the purpose
of the legislation should be preferred to a
literal construction. A construction which
would defeat the rights of the have-nots
and the underdog and which would lead to
injustice should always be avoided..."

22. In the instant case the order passed
by
the
Additional
Commissioner
has
specifically recorded that the petitioners were
not eligible for grant of lease inasmuch as they
did not belong to the class of landless
agricultural labourers they could not have been
admitted to the land as per the order of
preference in accordance with the provisions
contained under Section 195 read with Section
198 of the 1950 Act and as such the settlement
of the surplus land under sub-section (3) of
Section 27 was irregular. It has further been
recorded that the land in question being already
in occupation of landless agricultural labourers
belonging to scheduled castes, the land could
not be said to be vacant and the same could not
have been allotted to the petitioners.

23. The principal contention which is
sought to be raised on behalf of the petitioners is
that the order has been passed without notice and
opportunity to the petitioners also does not inspire
confidence inasmuch as the order-sheet of the
case which is on record as part of the counter
affidavit filed by the State respondents clearly
shows that the order impugned has been passed
after due notice and opportunity to the petitioners.

24. Counsel for the petitioners has not been
able to demonstrate from the records that the
petitioners belong to the eligible criteria so as to
be entitled for allotment of the ceiling surplus
land.

25. No other ground has been urged.

26. No material error or irregularity has
been pointed out in the order impugned so as to
warrant interference.

27. The writ petition lacks merit and is
accordingly dismissed.
----------
(2020)02ILR A400

 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2019

BEFORE

THE HON'BLE AJAY BHANOT, J.
2 All. Ajay Singh Vs. Union of India & Ors.
401
Writ C No. 32955 of 2019

Ajay Singh ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Kumar Mishra

Counsel for the Respondents:
A.S.G.I., Sri Shashank Shekhar Singh

A. Constitution of India - Fundamental
Rights - Nature - The text of the Constitution,
is a conceptual philosophy of fundamental
rights, and not an exhaustive guide to
fundamental
rights
-
The
text
of
the
Constitution is fixed, fundamental rights are
always evolving. This is the essence of
constitutional law jurisprudence - Evolution of
constitutional law rights are guided and
controlled by the text of the constitution, long
settled judicial principles of interpretation of
the constitution, and judicial precedents in
point - The march of law is also assisted by
consensus of values, in the comity of civilized
nations. (Para 39 and 40)

B. Constitution of India - Article 21 -
Human dignity - Means and Scope -
Human dignity made a decisive contribution in
the development of the rights of life and
liberty, in jurisprudential systems of free
societies across the world - Consistent and
high authority have thus entrenched human
dignity as fundamental to right to life, which
flows from Article 21 of the Constitution of
India. (Para 77, 106)

C. Constitution of India - Article 21 -
Validity
of
Punishment
-
Imposed
on
delinquent student - Punishment has to be
effective to serve its purpose; however, it
cannot be purblind to human dignity, if it is to
retain its constitutionality - Degree of injuries
to self esteem, extent of degradation of human
worth, depth of humiliation caused by the
punishment, are facts to be probed in an
enquiry into the validity of the punishment -
Punishment for deviant conduct, cannot be so
severe as to degrade human life. Every form of
punishment
should
protect
the
essential
sanctity of human life and comport with
fundamental norms of decency evolved by a
civilized society. (Para 117, 119 and 121)

D. Constitution of India - Article 21 -
Rehabilitation and Reformation - Absence of an
environment of reform, self development and
rehabilitation in a university, denies the
opportunity of redeeming one's reputation -
The individual is permanently discarded by the
institution, and loss of human self worth is total
- This system of punishment is destructive of
fundamental elements of human dignity, and
violative of Article 21 of the Constitution of
India - Held, The impugned action taken by
the university, against the petitioner is violative
of the fundamental right of human dignity of
the petitioner, guaranteed under Article 21 of
the Constitution of India, as it fails to consider
his susceptibility to reform. (Para 122 and 134)

E.
University
Law-
Its
role
and
contribution
-
Preservation
of
Constitutional values - University is a
paternal institution - It is a microcosm of the
Society - There are no other institutions of
equal standing, to engage with the youth, deal
with
the
discontent
or
aberration,
and
channelize youthful energies - The role of the
University
does
not
end
in
punishing
perpetrators of violence. It begins with the
identification of the causes of violence,
communal hatred, and other forms of deviant
conduct - Thereafter the responsibility to
achieve behavioral change commences - The
universities have the responsibility, to preserve
this heritage, and the obligation to nurture
these constitutional values. (Para 147, 148, 151
and 159)

F. Nudge - Methodology - Behavioral
Change - Importance of Yoga, Meditation and
Vipassana - The methodology of 'nudges', in
creating behavioral change has been gaining
acceptability. The organization 'Nudge' in
Lebanon, has done noteworthy work with
refugee
children,
and
on
environmental
protection - The Behavioral Insights Teams
sometimes called 'Nudge Units', are also
existing in many nations including Australia,
Canada, Germany, Qatar, the United Arab
Emirates, Japan, the United States, and the
United
Kingdom
-
Ancient
branches
of
402 INDIAN LAW REPORTS ALLAHABAD SERIES
knowledge and wellness like yoga, meditation,
vipassana and so on may prove to be rich
resources to benefit from. (Para 174, 175 and
176)
G. Therapeutic Approach - Significance -
To
solve
Social
Problem
-
Under
the
therapeutic method, however, an individual's
happiness depends on his or her self-esteem,
and self-esteem is a by-product of public
recognition - With the rise of therapeutic
approaches
by
mid
century,
they
were
increasingly seen as social pathologies that
needed to be treated through counseling and
psychiatric intervention - Therapeutic solutions
to social problems, are being increasingly
recognized by social scientists, medical experts,
psychologists, and jurists alike. (Para 138 and
179)

Writ Petition disposed of. (E-1)

List of cases cited :-

1. Vishaka Vs. State of Rajasthan, reported at
1997 (6) SCC 241

2. Rattan Chand Hira Chand v. Askar Nawaz
Jung, (1991) 3 SCC 67

3. Sajjan Singh v. State of Rajasthan, AIR 1965
SC 845.

4. Kesavananda Bharati v. State of Kerala
(1973) 4 SCC 225

5. Maneka Gandhi v. Union of India, (1978) 1
SCC 248)

6. Olga Tellis v. Bombay Municipal Corpn
(1985) 3 SCC 545).

7. Prem Shankar Shukla v. UT of Delhi (1980) 3
SCC 526

8. Francis Coralie Mullin v. UT of Delhi (1981) 1
SCC 608

9. Bandhua Mukti Morcha v. Union of India
(1984) 3 SCC 161

10. Khedat Mazdoor Chetna Sangath v. State of
M.P. (1994) 6 SCC 260

11. M.Nagaraj v. Union of India (2006) 8 SCC
212

12. Shabnam v. Union of India (2015) 6 SCC
702

13. Jeeja Ghosh v. Union of India (2016) 7 SCC
761

14. Mehmood Nayyar Azam v. State of
Chhattisgarh (2012) 8 SCC 1

15. National Legal Services Authority v. Union
of India (2014) 5 SCC 438

16. Maharasthra University of Health Sciences
v. Satchikitsa Prasarak Mandal (2010) 3 SCC
786

17. Selvi v. State of Karnataka (2010) 7 SCC
263

18. Sunil Batra (II) Vs. Delhi Administration
1980 (3) SCC 488)

19. T.K. Gopal v. State of Karnataka (2000) 6
SCC 168

20. Asfaq v. State of Rajasthan and Others
(2017) 15 SCC 55

21. K.S. Puttaswamy v. Union of India (2017)
10 SCC 1

22. Rosenblatt v. P Baer 1966 SCC OnLine US
SC 22 : 383 US 75 (1966)

23. Armoniene v. Lithuania (2009) EMLR 7

24. Procunier, Corrections Director, ET AL. Vs.
Martinez ET AL. 416 U.S. 396 (1974)

25. Trop Vs. Dulles 356 US 86 (1958)

26. Bijoe Emmanuel and others vs. State of
Kerala and others (1986) 3 SCC 615

27. Avinash Nagra Vs. Navodaya Vidyalaya
Samiti and Others (1997) 2 SCC 534

28. Devarsh Nath Gupta Vs. State of U.P. and
Others, 2019(6) ADJ 296 (DB)
2 All. Ajay Singh Vs. Union of India & Ors.
403
(Delivered by Hon'ble Ajay Bhanot, J.)

1. This judgment has been structured
by dividing it into various sections to
facilitate analysis and for easy read. They
are:

A.
Reliefs sought
B.
Arguments of learned counsels for the parties
C.
Facts
D.
Legal Issues common in all writ petitions
E.
Stands of various respondents on affidavits
(i).Response of IIT BHU
(ii).Response of AMU
(iii).Response of BHU
(iv).Response of UGC
(v).Response of UoI
F.
Evolution of Fundamental Rights by courts
(i)
Legislative
lag,
executive
inertia
and
fundamental rights
G.
Process of law and the courts : Current State &
Contemporary Challenges
H.
Education
(i). Importance and scope
(ii). Role and obligation of universities
I.
Discipline in Universities: Concept, Need &
Challenges
(i). Violence, intimidation and moral turpitude
(ii). Communal disturbances in universities
(iii). Discipline in universities
(iv). Statutory approach to maintaining discipline
J.
Statutory Regime of Punishments in light of
Article 21 & Doctrine of Proportionality
K.
Punishments & Article 21
(i). Right to human dignity
(ii). Supreme Court on human dignity
(iii). Comparative International Jurisprudence
(iv). Constitutionality of punishments under the
statutes
(v). Systemic responses : Responsibilities of the
State and the universities
L.
Reform, Self Development & Rehabilitation:
(i). Role of universities in achieving behavioural
change
(ii). Imbibing constitutional values and purging
communal hatred
(iii). Present discontents of students and solutions
(iv).
Creation
of
reform/self
development/rehabilitation programmes
(v). Concerns of universities regarding discipline,
&
restraints
during
the
reformation,
self
development & rehabilitation programme
M.
Conclusions & Reliefs
N.
Appendix

A. Reliefs sought

2. The petitioner has assailed the
following orders passed by the respondent
University:

(i) The order of suspension dated
13.02.2019 passed by the Proctor, Aligarh
Muslim University, Aligarh;

(ii) The order dated 28.03.2019
whereby the petitioner was directed to
appear before the disciplinary committee
and respond to the query, which he was
failed to answer on the earlier occasion;

(iii)
The
chargesheet
dated
16.03.2019.

3. The petitioner has further prayed
for a direction to be issued to the
authorities to permit the petitioner to
submit his project work and allow him to
appear in the viva-voce test, in which he
has been left out and to declare the result
of the petitioner.

4. The petitioner has also prayed for
a direction to be issued to the respondent
University to permit the petitioner to
pursue his studies in the ongoing academic
sessions.

B.
Arguments
of
the
learned
counsels for parties

5. Sri R. K. Ojha, learned Senior
Counsel
assisted
by
Sri
Ratnakar
Upadhyay,
learned
counsel
for
the
petitioner submits that the impugned order
was passed in violation of the statutes of
the university. The punishment imposed
upon the petitioner is disproportionate.
There is no provision for reform and
404 INDIAN LAW REPORTS ALLAHABAD SERIES
rehabilitation of delinquent students in the
statutes, which has resulted in violation of
the fundamental right of the petitioner
guaranteed under Article 21 of the
Constitution of India.

6. Sri Anish Kumar, Sri Pankaj Misra
and Sri Gaurav Pundir, learned counsels
for the petitioner in connected writ
petitions adopt the aforesaid arguments of
the learned Senior Counsel, apart from
raising factual issues peculiar to the
respective writ petitions in which they
appear.

7. Sri V.K. Upadhyaya, learned Senior
Counsel assisted by Sri V.D. Chauhan, learned
counsel for the BHU submits that the BHU has
taken action as per law.

8. The learned Senior Counsel relied on
the affidavits filed by the B.H.U., on creation
of
a
reform,
self
development
and
rehabilitation
programme
for
delinquent
students.

9. Sri Ajit Kumar Singh, learned Senior
Counsel assisted by Sri V. D. Chauhan,
learned counsel for the IIT BHU, contends that
the IIT BHU, as a matter of policy accepts and
is willing to adopt a professionally designed
reform and rehabilitation programme for
delinquent students. However, good order and
discipline have to be maintained in the
university, at all costs. In fact IIT BHU is
currently even running a reform programme.
He fairly conceded that the programme is not
fully developed, and does not have a
supporting statutory/legal frame work.

10. Sri Shashank Shekhar Singh, learned
counsel for the respondent-AMU, submits that
the AMU fully accepts the idea of a reform
and rehabilitation programme for delinquent
students on an institutional basis. He however
contends that no compromise with the good
order, discipline and the stability of the
academic atmosphere can be made in any
manner.

11. Sri Rizwan Akhtar, learned counsel
for the UGC, Sri Rakesh Srivastava, and Sri
Abrar Ahmed, learned counsels for the Union
of India, have also been heard.

C. Facts

12. The petitioner is pursuing his
LLM course from the respondent Aligarh
Muslim
University,
Aligarh.
The
proceedings against the petitioner arise
out of an incident of misconduct on
12.02.2019.
The
substance
of
the
charges,
as
enumerated
in
the
chargesheet dated 16.03.2019, is that the
petitioner along with others persons,
threatened and physically assaulted one
Imran Khan on 12.02.2019. Imran Khan
managed to escape, from the scene of the
scuffle, but the petitioner and his
companions,
destroyed
valuable
documents and snatched a bag from his
room. The petitioner and his companions
tried to disrupt the communal harmony
of the campus and created a law and
order situation.

(i) Suspension, Enquiry, Current
Status

13. The inquiry against the incident
was earlier completed. However, the
petitioner was later asked to re-testify
before the enquiry committee and clarify
the some issues. The enquiry is pending
ever
since.
The
petitioner
stands
suspended indefinitely.

D. Legal Issues common in all writ
petitions
2 All. Ajay Singh Vs. Union of India & Ors.
405

14. Absence of any reform and
rehabilitative
measures,
in
the
administrative and legal frameworks of the
universities,
has
serious
legal
and
constitutional implications.

15. The impugned action and the
statutory regime of imposing punishments
will also be judged in such constitutional
and legal perspectives. The discussion on
these issues shall be common in all the
companion writ petitions.

16. Calling attention to the statutes of
the universities, namely, BHU, IIT BHU
and AMU, the learned counsels for the
petitioners; contended that the said statutes
do not contain provisions for reform and
rehabilitation of delinquent students. The
action against delinquent students, is
governed and regulated, solely by the
penal provisions of the statutes of the
respective
universities.
The
punitive
scheme is a common thread in the statutes
of all the three universities.

17. In response, all the counsels for
the various respondents universities', in
fact conceded that as on date no structured
and professionally designed programmes
for
reform,
self
development
and
rehabilitation
of
delinquent
students,
backed by a proper legal frame work, exist
in the respective universities.

18. Accordingly, various orders were
passed by this Court, from time to time,
requiring
the
respective
universities
namely, Banaras Hindu University, Indian
Institute of Technology Banaras Hindu
University,
and
Aligarh
Muslim
University, as well as the University
Grants Commission and the Union of India
through the Ministry of Human Resource
Development, New Delhi, to submit their
responses in regard to creation of a reform
and
rehabilitation
frame
work,
for
delinquent students in universities and
institutions
of
higher
learning.
The
respondents were also required to indicate,
whether they had any opposition or even
reservation, in regard to the creation of the
reform and rehabilitative programme for
delinquent students in the universities.

19. All the respondents namely
Banaras Hindu University (hereinafter
referred to as BHU), Indian Institute of
Technology, Banaras Hindu University
(hereinafter referred to as IIT BHU),
Aligarh Muslim University (hereinafter
referred to as the AMU) as well as Union
of India through Ministry of HRD and
University
Grants
Commission
(hereinafter referred to as UGC) have
submitted their responses to the aforesaid
issues.

E. Stands of respective respondents
on affidavits

(i) Response of IIT BHU

20. The IIT BHU in its affidavit
has recorded its full agreement with a
reform oriented approach, to deal with
deviant behaviour in students. Thus
IIT, B.H.U., has made a ringing
endorsement, of the need to adopt a
reform and rehabilitation programme
for delinquent students. However, it
has also underscored the need for
punitive action, to maintain a peaceful
environment
in
the
campus.
The
relevant paras of the affidavit are
quoted hereinunder:

"2. That the present affidavit
is being filed in compliance of the
order dated 19.9.2019 passed by this
Hon'ble Court.
406 INDIAN LAW REPORTS ALLAHABAD SERIES

4. That the Institute as indicated
in the foregoing paragraph, is in full
agreement
with
a
reform
oriented
approach. However, in cases where
reformative steps do not yield the desired
corrections in behavior and actions of
erring students, the Institute has to resort
to punitive action in order to maintain the
peaceful environment in the campus."

21. By categorically stating its
commitment to reform of delinquent
students, the IIT BHU has been true to its
founding principles, and has faithfully
discharged its obligations, under law and
to the society.

(ii) Response of AMU

22. Upon orders being passed by this
Court, the AMU to its credit, constituted
an expert committee. The report of the
expert committee has been submitted, and
is made part of the record of the Court.
The relevant parts of the Committee
Report are extracted hereinbelow:

"In the light of the above the
committee observes as under:

1. Our criminal justice system
envisages two type of laws: one for
Juveniles and second for other than
Juveniles. There is a separate law for
Juveniles known as Juvenile Justice Act,
2015 whereas others are covered under
Code of Criminal Procedure, 1. 1976 and
Indian Penal Code, 1860. The application
of AMU Discipline and Conduct Rules,
1985 does not come primarily under the
definition
of
Juvenile
therefore
the
protection available to Juveniles are not
available to the Students of the university
in general. It becomes more relevant in
view of the fact that at the time of
admission
every
the
disciplinary
jurisdiction of the Vice Chancellor and the
other authorities of the University is
required to sign a declaration to the effect
that he submits himself to the disciplinary
jurisdiction of the Vice Chancellor and the
other authorities of the University.

2. That it is also pertinent to
mention
here
that
Aligarh
Muslim
University is primarily a RESIDENTIAL
UNIVERSITY and there are approximately
36,665
Students
[22.593
University
Students and departments/courses/Schools
in the Aligarh Muslim University. Among
these students 12,158 students reside in 56
Hostels (22 for girls) in the campus within
the radius of 10 KM. Therefore, the future
career of thousands of the students cannot
be allowed to be jeopardized for the sake
of handful of students who are involved in
the indiscipline act and are destroying the
whole atmosphere of the University.

3. In principle that criminal
activity has no role to play in our
education system therefore the students
who are involved in the criminal activity
have also no role to play in our education
system. The students who are indulged in
the criminal activity have different mindset and have nothing to do with their
studies. They are not at all interested to
pursue their studies and their presence
only hampers the study of the other
students who are interested to pursue their
study. It is the duty of the University to
marginalize such type of students so that
the students at large, who are more
interested to pursue their studies, may
pursue their studies in cordial and
peaceful/ atmosphere.

4. That as per existing rules of
the University, there is no compulsory/
mandated
counselling
available
to
students against whom the discipline and
conduct rules are invoked. These rules are
also not invoked in a routine way but
2 All. Ajay Singh Vs. Union of India & Ors.
407
being a residential University there are
day-today interactions/counselling with
the Wardens, Provost Tutors, Teachers
and Senior Students holding positions of
Senior Hall/Food etc.

5. That the extreme punishments
as provided in the 1985 rules are invoked
when there is an extreme situation and
continuance/presence
of
the
students
became
a
threat
to
the
academic
environment and campus life of the
University.

6.
At
the
same
time
the
observations of the Hon'ble Mr. Justice
Ajay Bhanot in this matter are highly
appreciable in the context to infuse a
reformative approach that the solution lies
in engaging with the students, and
harnessing
their
energies
creatively.
Errant behavior has to be reformed and
not condemned. Erring students have to be
transformed and not judged. The purpose
of education is to unlock the immense
potentiality in the human resource of the
nation. This is possible by bringing about
a conceptual shift in the concept of
enforcing discipline, in the portals of the
University.
Indiscipline
unchecked
is
indiscipline unleashed. But it is equally
true. that expelling students from the
University is a short term, if not a myopic
view of the issue. A balance has to be
drawn by the University authorities. The
University has to create an ecosystem,
with qualified staff and detailed programs
of engaging with such students, with a
view to give them an opportunity to reform
themselves. Expulsion of students would
abandon them to their own devices, close
the doors of reformation to them, and shut
them out from the redeeming light of
knowledge. Leaving children accused of
misconduct or deviant behavior, to fend
for themselves would create issues for the
society at large. In case Universities
decline to shoulder the responsibilities of
bringing such children back to the correct
path, and do not provide the frame work
for mainstreaming this class of students,
the consequences would be detrimental to
the society at large. There is no better
institution in our democratic frame work,
to embrace the young and questing spirits
who have strayed from their path of
morally upright and correct conduct. The
Universities are uniquely equipped to deal
with the challenge on an institutional
basis. The Universities are repositories of
knowledge, resources and experience to
meet the challenge at hand. What is at
stake, is not merely the future of an
individual, but stability of the society The
concerns of the society have to be handled
by the University. The magnitude of the
challenge is large, but it is imperative for
the Universities to accept it and provide
the adequate response.

After detailed deliberations and
in the backdrop of above the committee
proposes that:

1.
Structural
reformative
approach may be included in the AMU
Students Conduct and Discipline Rules
of 1985 as this committee has identified
some areas (not all inclusive) for
counselling
by
a
psychologist
as
enumerated above.

2.
As
the
misconduct
offences/crimes related to internet and
cyberspace were not available when the
Discipline Rules were framed, the same
needs to be identified and appropriately
included in the AMU Students Conduct
and Discipline Rules of 1985 as it is
growing among young and youth.

3. Outside campuses were not
established when these rules were
framed, hence, there is also need to
amend these rules to include a structure
for those centres.
408 INDIAN LAW REPORTS ALLAHABAD SERIES

The
committee
therefore
recommends to the Vice-Chancellor as
follows:

AMU Students Conduct and
Discipline Rules 1985 were framed almost
30 years back and in the light of the
observations given above, a detailed and
exhaustive exercise may be undertaken by
a committee to be appointed by the ViceChancellor under the convenorship of the
Proctor of the University to formulate and
propose a draft of revised AMU Students
Conduct and Discipline Rules, inclusive of
reformative approach, after exploring
similar rules already enforced by sister
universities and institutions in India and
abroad for further consideration of the
Vice-Chancellor and Academic Council of
the University."

23. The AMU has thus in principle,
recognized the need for a reform and
rehabilitation programme for delinquent
students in some areas in the university.
The AMU too has accorded top priority, to
the maintenance of discipline in the
campus, and is rightly unwilling to
compromise with the same.

(iii) Response of BHU

24. The initial affidavit filed by the
BHU, in regard to their stand on a
reformative and rehabilitation programme
for delinquent students, stated in effect
that the reformation of the students
indulging deviant behaviour is achieved,
by providing for various categories of
punishments, depending upon the nature of
indiscipline. It further asserted, that in the
name of reformation, the University
cannot give a "go by", to the objectives of
the university. The relevant paras 17 and
18 of the affidavit dated 17.09.2019 are
extracted hereunder:

"17. In the present case no such
conditions
exist
and
as
such
the
continuance of the order of suspension of
the petitioner from the privileges of the
University and Hostel is in accordance
with law. That 17. it is the University
humbly that submitted administration and
the Vice-Chancellor in particular is the
custodian of the interests of all the
students involved in various academic
pursuits in the University. In the case of
Banaras Hindu University the number of
all the students at various levels runs into
more than 30 thousand. For the smooth
functioning
of
the
University
and
maintenance of an environment conducive
to academic pursuits the interest of an
individual student must give way to the
larger interests of all the students as a
whole. This is not only in the interest of the
students themselves but also in public
interest. In the of reformation of the
students
the
University
name
administration cannot give a go by to the
objectives of the University nor can it take
an action which may have the potential of
destroying the smooth functioning of the
University embroiling the University in
large scale unrest both in the student as
well as in the teaching community. If the
University such situation is brought about
a administration would be failing in its
duty. The fact that Banaras Hindu
University
is
the
largest
residential
University in the country if not the world
cannot be lost sight of. Even small spark
has the potential of turning into a
conflagration which may become difficult
to contain.

18.
That
the
facility
and
provisions aimed at reformation of the
erring students found indulging in deviant
behavior is inherent in the Ordinances of
the University dealing with students'
indiscipline by providing for various
2 All. Ajay Singh Vs. Union of India & Ors.
409
categories of punishments depending upon
the nature of indiscipline."

25. However, subsequently, the BHU
filed an affidavit on 26th September, 2019,
easing its reservations, against a reform
and
rehabilitation
programme.
The
affidavit exhibited a shift in stand,
indicating a willingness to consider a
reformative approach. The para 7 of the
affidavit is extracted hereunder:

"7.
That
all
the
aforesaid
mechanisms and provisions exist in the
University for creation and preservation of
an academic ambience conducive to
teaching and learning and vibrant and
peaceful community life. However, there
exist no provision in the Rules of the
University for any formal reformative
mechanism or process for such students as
are found involved in an offence involving
moral turpitude or heinous crime and
hence are suspended from the privileges of
the University. However, the University is
not averse to considering this aspect, if it
is found appropriate by the University
through Constitution of a Committee of
stakeholders which may look into as to
whether such a mechanism is desirable in
principle in the context of maintenance of
academic ambience of the University or it
may be detrimental to it, particularly, to
the interest of larger group of the students,
teachers and employees."

26. In substance the BHU was open
to the concept of a structured reformative
programme. It has however, desisted from
taking a categorical position, on this most
critical issue. While openness to new ideas
is appreciated, failure to take a specific
stand is also noticed. The Court will go no
further.

(iv) Response of UGC

27. Sri Rizwan Ali Akhtar, learned
counsel for the UGC has relied on the
affidavit filed by the UGC. The UGC in its
affidavit, stated that the universities are
autonomous institutions. The academic
and administrative decisions, are to be
taken by the universities concerned, as per
law. It was also stated that "the UGC has
no role to play on day to day function of
the Central Universities".

(v) Response of UoI

28. The Ministry of Human Resource
Development, Government of India has
chosen not to file any affidavit, despite
orders
passed
by
the
Court
and
opportunities granted by the Court. The
Court has to proceed, with the hearing in
the interests of justice.

29. It was informed that the Ministry
of
Human
Resource
Development,
Government of India, on its part had sent
communications to the AMU and BHU, to
protect its interests. The Court finds that
the interests of the Union of India, are in
no manner adversely affected. In these
cases the interests of the Union of India,
are not converse to the universities.

"The best lack all conviction."
~WB Yeats

30. Present discontents cannot be
addressed
by
rote
responses.
Contemporary
problems
cannot
be
resolved by jejune formulae.

31. The universities cannot avoid a
stand
at
the
decision
point.
By
prevarication at the decision point, the
410 INDIAN LAW REPORTS ALLAHABAD SERIES
university may postpone the reckoning,
but cannot escape responsibility.

32. Law has to hold institutions
accountable to their obligations, to the
founding purposes, to the students and to
the society at large.

33. Universities of eminence cannot
justify present inertia on the foot of past
glory. Universities have to be aware of the
risks, of basking in the reflected glory of
the past. Eminence is achieved by past
glory, however, reputation is retained by
present endeavours.

34. Universities at certain critical
decision points, would be true to their
founding purposes and extant obligations
by making clear and creative interventions.
The
universities
as
well
as
other
authorities cannot show ineptitude in the
face of crises, and equivocation in the face
of solutions. In these critical situations the
universities as well as other authorities,
have to stand up and intervene and not
stand by and equivocate.

F. Evolution of Fundamental
Rights by courts

35. The fundamental rights of
citizens are stated in Part III of the
Constitution of India. But as in all
cases, text of the rights can never be
the exhaustive description of all rights.
Rights have to be interpreted from the
text of the Constitution. The process of
interpretation of the text, often results
in
the
evolution
of
rights.
The
Constitution is the textual origin of
fundamental rights. Constitutional law
defines the substance of fundamental
rights.

(i) Legislative lag, executive inertia
and fundamental rights

36. The fast pace of life in modern
times often, outstrips the capacity of the
legislature, to cope with the consequences
of social change. There is a limit to human
foresight, but the possibilities of life are
limitless. The limits of legislation are the
constraints of human foresight. The
legislative process is complex and even
time taking. Human affairs do not wait on
the
legislative
process.
These
facts
frequently create a legislative lag. It is
almost inevitable in the nature of things.

37. The first intersection of life with
law, at times happens in courts, even
before the legislature grapples with the
problems. The courts are often seized, of
various emerging issues in social and
individual lives, before the legislatures are
cognizant of them.

38. A legislative hiatus or executive
lethargy, cannot cause a constitutional
stasis. The enforcement of fundamental
rights,
cannot
be
forestalled
by
a
legislative
lag
or
executive
inertia.
Constitutional
guarantees
and
Fundamental Rights, have to be enforced
on demand. Constitutional overhang is
perpetual. Law is always in motion, and
never on a holiday.

39. The text of the Constitution, is a
conceptual philosophy of fundamental
rights, and not an exhaustive guide to
fundamental rights. The text of the
Constitution is fixed, fundamental rights
are always evolving. This is the essence of
constitutional law jurisprudence. There is a
method in the evolution of constitutional
law jurisprudence.
2 All. Ajay Singh Vs. Union of India & Ors.
411

40. Evolution of constitutional law
rights are guided and controlled by the text
of the constitution, long settled judicial
principles
of
interpretation
of
the
constitution, and judicial precedents in
point. The march of law is also assisted by
consensus of values, in the comity of
civilized nations. These universal values
are often manifested in International
Conventions and Treaties. Another source
of such values is comparative international
jurisprudence. The felt needs of the times
are also factored in by the courts.
Development
of
constitutional
law
happens
on
these
sure
foundations.
Constitutional rights are distilled from this
process. In this process, the courts
discharge their constitutional obligations.
This is not judicial activism by courts. It is
judging.

41. The Hon'ble Supreme Court in
the case of Vishaka Vs. State of
Rajasthan, reported at 1997 (6) SCC 241,
issued various guidelines for the safety of
women at working places. The guidelines
held the field, till the Parliament enacted
the legislation in that regard. Judicial
directions in that case preceded, the
legislative enactment. Infact the legislature
was alerted, to the need of a legislation to
cover the field, by the judgment of the
Hon'ble Supreme Court.

42. This narrative will profit from the
observations of the Hon'ble Supreme
Court, in the case of Rattan Chand Hira
Chand v. Askar Nawaz Jung, reported at
(1991) 3 SCC 67:

"The legislature often fails to
keep pace with the changing needs and
values nor is it realistic to expect that it
will have provided for all contingencies
and eventualities. It is, therefore, not only
necessary but obligatory on the courts to
step in to fill the lacuna. When courts
perform this function undoubtedly they
legislate judicially. But that is a kind of
legislation
which
stands
implicitly
delegated to them to further the object of
the legislation and to promote the goals of
the society. Or to put it negatively, to
prevent the frustration of the legislation or
perversion of the goals and values of the
society. So long as the courts keep
themselves tethered to the ethos of the
society and do not travel off its course, so
long as they attempt to furnish the felt
necessities of the time and do not refurbish
them, their role in this respect has to be
welcomed.

All courts have at one time or
the other felt the need to bridge the gap
between what is and what is intended to
be.
The
courts
cannot
in
such
circumstances shirk from their duty and
refuse to fill the gap. In performing this
duty they do not foist upon the society
their value judgments. They respect and
accept the prevailing values, and do
what is expected of them. The courts
will, on the other hand, fail in their duty
if they do not rise to the occasion but
approve helplessly of an interpretation
of a statute or a document or of an
action of an individual which is certain
to subvert the societal goals and
endanger the public good."

G. Process of law and the courts :
Current
State
&
Contemporary
Challenges

43. The pace of technological, social
and economic developments, often pose a
challenge to the courts. Courts of today
often have to deal with complex issues
ranging
from
science,
technology,
economics, archaeology, medicine, social
412 INDIAN LAW REPORTS ALLAHABAD SERIES
sciences and across other fields of highly
specialized knowledge.

44. Lawyers on occasions lack the
expertise, to grasp and simplify issues of
varying complexity, from fields unrelated
to law. Judges do not fare any better.
Parties have their interests to protect.

45. The intellectual capital created by
traditional resources of the judicial process,
may not be adequate to manage such
contemporary
challenges.
The
judicial
process would have to evolve, to meet the
felt needs of the time. The rising tides of
human knowledge, cannot pass the courts
by. This shall require change in procedures,
and development of infrastructure.

46. The intellectual resource base has
to be widened. The debate has to be
broadbased, to include direct inputs from
experts as well. This would also entail well
equipped libraries, which are staffed by
qualified personnel and research assistants,
and may be even experts. Institutional
arrangements for interface of the courts with
experts, have to be in place to ensure
procedural propriety.

47.