# Anant Narayan Mishra v. The Union of India & Ors

- **Citation:** (2020) 1 ILRA 598
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-02
- **Case number:** Writ C No. 13214 of 2019
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anant-narayan-mishra-v-the-union-of-india-ors-45235
- **Pages:** 40

## Headnote

A.S.G.I., Sri Ajeet Kumar Singh, Sri Ishan
Shishu, Sri K.R. Singh, Sri Krishna Raj Singh
Jadaun, Sri Rijwan Ali Akhtar, Sri Vikram D.
Chauhan, Sri V.K. Upadhyaya

A. Moral turpitude - definition - wide
ambit
-
criminal
offence
does
not
automatically lead to an inference that
the act is of moral turpitude - offences
can be categorized as those involving
moral turpitude will depend on facts of
each case.

The Court found that the issue whether the
offending act attributed to the petitioner, fell in
the categories of "heinous crime (including
violence and intimidation) or was an act of
moral turpitude", is
wholly absent from
consideration. The impugned order suffers from
non-application of mind, and was passed
mechanically. (Para 35)

B. Education - essence - its values -
modern
threats
-
can
be
curtailed
through discipline - punishments for
violation of discipline - Court issued
directions to the State to create a reform,
self-
development
and
rehabilitation
programme for accused students.

C. Punishment - deterrent approach -
punitive approach - reformative approach
- self development and rehabilitation.

The Court finds that there is no structured,
professionally
designed
reform,
self
development and rehabilitation programme, or
therapeutic support system backed by a legal
frame work to deal with the delinquent
students and like issues in the universities.
(Para 91)

D. Article 21 - Constitution of India -
includes
right
to
human
dignity
-
jurisprudential
aspect
-
punishment
should protect the essential sanctity of
human life.

Punishment has to be effective to serve its
purpose; however, it cannot be purblind to
human
dignity,
if
it
is
to
retain
its
constitutionality (Para 140)

Failure to consider susceptibility to reform,
while denying the right to access privileges and
activities
of
the
university,
negates
the
possibility of rehabilitation. Absence of an
environment of reform, self development and
rehabilitation in a university, denies the
opportunity of redeeming one's reputation.
Termination of dialogue with the delinquent
1 All. Anant Narayan Mishra Vs. The Union of India & Ors.
599
student, without offering an opportunity to
reform, makes him an outcaste. 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 (Para
145)

The statutory omission of reform measures, is
an inadequacy which renders the university
incapable of rectifying the violation made by it.
The systemic fault-line is contrary to the
mandate of Article 21 of the Constitution of
India. (Para 157 (ii))

E. Constitutional Jurisprudence - Doctrine
of Proportionality - fundamental rights -
can never be exhaustive - text of the
Constitution is fixed, fundamental rights
are always evolving.

The essence of proportionality is that, the
competent
authority
while
imposing
a
punishment upon a delinquent student, has to
co-relate and balance the imperatives of
institutional discipline with the demands of
individual rights. Too light a punishment will
not be conducive to institutional discipline. Too
harsh a punishment will not be consistent with
norms of justice. (Para 222)

 The impugned action fails the test of
proportionality as the suspension of the
petitioner from the university, for an undefined
or indefinite period, is an action of extreme
severity. It is de-facto expulsion from university.
(Para 224)

Writ Petition partly allowed. (E-10)

List of cases cited: -

## Text

_Characters 0–39,871 of 125,168. This is a partial read: ask again with offset=39871 for what follows._

598 INDIAN LAW REPORTS ALLAHABAD SERIES

10. From the position of law as exposited
in S. Rathinam and Mahadeo, it is manifest
that a will would clearly not fall within the
scope of the expression "transfer" as employed
in Section 5 (6). The will executed in favour of
the brothers of the petitioner could not have
been held or recognised as embodying a
transfer for the purposes of the Act. It is
manifest that the will which was executed in
favour of the brothers of the petitioner could
not be said to fall within the ambit of Section
5(6) of the Act. This in itself renders the
impugned orders wholly unsustainable.

11. The writ petition is accordingly
allowed. The impugned orders dated 21
February 1986, passed by the Prescribed
Authority and 5 November 1988 passed by the
Additional Commissioner are hereby quashed.
----------
(2020)1ILR 598

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2019

BEFORE
THE HON'BLE AJAY BHANOT, J.

Writ C No. 13214 of 2019

Anant Narayan Mishra ...Petitioner
Versus
The Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Radha Kant Ojha, Sri Girijesh Kumar
Mishra, Sri Ratnakar Upadhyay

Counsel for the Respondents:
A.S.G.I., Sri Ajeet Kumar Singh, Sri Ishan
Shishu, Sri K.R. Singh, Sri Krishna Raj Singh
Jadaun, Sri Rijwan Ali Akhtar, Sri Vikram D.
Chauhan, Sri V.K. Upadhyaya

A. Moral turpitude - definition - wide
ambit
-
criminal
offence
does
not
automatically lead to an inference that
the act is of moral turpitude - offences
can be categorized as those involving
moral turpitude will depend on facts of
each case.

The Court found that the issue whether the
offending act attributed to the petitioner, fell in
the categories of "heinous crime (including
violence and intimidation) or was an act of
moral turpitude", is
wholly absent from
consideration. The impugned order suffers from
non-application of mind, and was passed
mechanically. (Para 35)

B. Education - essence - its values -
modern
threats
-
can
be
curtailed
through discipline - punishments for
violation of discipline - Court issued
directions to the State to create a reform,
self-
development
and
rehabilitation
programme for accused students.

C. Punishment - deterrent approach -
punitive approach - reformative approach
- self development and rehabilitation.

The Court finds that there is no structured,
professionally
designed
reform,
self
development and rehabilitation programme, or
therapeutic support system backed by a legal
frame work to deal with the delinquent
students and like issues in the universities.
(Para 91)

D. Article 21 - Constitution of India -
includes
right
to
human
dignity
-
jurisprudential
aspect
-
punishment
should protect the essential sanctity of
human life.

Punishment has to be effective to serve its
purpose; however, it cannot be purblind to
human
dignity,
if
it
is
to
retain
its
constitutionality (Para 140)

Failure to consider susceptibility to reform,
while denying the right to access privileges and
activities
of
the
university,
negates
the
possibility of rehabilitation. Absence of an
environment of reform, self development and
rehabilitation in a university, denies the
opportunity of redeeming one's reputation.
Termination of dialogue with the delinquent
1 All. Anant Narayan Mishra Vs. The Union of India & Ors.
599
student, without offering an opportunity to
reform, makes him an outcaste. 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 (Para
145)

The statutory omission of reform measures, is
an inadequacy which renders the university
incapable of rectifying the violation made by it.
The systemic fault-line is contrary to the
mandate of Article 21 of the Constitution of
India. (Para 157 (ii))

E. Constitutional Jurisprudence - Doctrine
of Proportionality - fundamental rights -
can never be exhaustive - text of the
Constitution is fixed, fundamental rights
are always evolving.

The essence of proportionality is that, the
competent
authority
while
imposing
a
punishment upon a delinquent student, has to
co-relate and balance the imperatives of
institutional discipline with the demands of
individual rights. Too light a punishment will
not be conducive to institutional discipline. Too
harsh a punishment will not be consistent with
norms of justice. (Para 222)

 The impugned action fails the test of
proportionality as the suspension of the
petitioner from the university, for an undefined
or indefinite period, is an action of extreme
severity. It is de-facto expulsion from university.
(Para 224)

Writ Petition partly allowed. (E-10)

List of cases cited: -

1. State Bank of India and Others Vs. P.
Soupramaniane 2019 SCC OnLine SC 608

2. Vishaka Vs. State of Rajasthan 1997 (6) SCC 241

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

4. Ajay Singh Vs. Union of India and Others
Writ C No. 32955 of 2019
5. Kesavananda Bharati v. State of Kerala
(1973) 4 SCC 225

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

22. K.S. Puttaswamy v. Union of India (2017)
10 SCC 1
600 INDIAN LAW REPORTS ALLAHABAD SERIES
23. Rosenblatt v. P Baer 1966 SCC OnLine US
SC 22: 383 US 75 (1966)

24. Armoniene v. Lithuania (2009) EMLR 7

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

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

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)

29. Ranjit Thakur Versus Union of India (1987)
4 SCC 611

(Delivered by Hon'ble Ajay Bhanot, J.)

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
(i). Background
(ii). Suspension order : Consequences
(iii). Suspension order : Validity
D.
Legal Issues common in all writ petitions
E.
Stands of various respondents on
(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.
Proportionality and Punishment
N.
Conclusions & Reliefs
O.
Appendix

A. Reliefs sought

1. The petitioner has assailed the
order dated 30.03.2019, passed by the
Registrar,
Banaras
Hindu
University,
Varanasi, suspending the petitioner from
all
privileges
and
activities
of
the
University.

2. The petitioner has also prayed for
a writ in the nature of mandamus to
command the authorities and permit the
petitioner to pursue his Integrated Rural
Development and Management (IRDM)
course as well as Ph.D. course and permit
1 All. Anant Narayan Mishra Vs. The Union of India & Ors.
601
the petitioner to participate in the activities
of the University.

B. Arguments of the learned
counsels for parties

3. 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 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.

4. Sri Anish Kumar, and 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.

5. 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.

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

7. 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. Though he fairly conceded
that the programme is not fully developed
and
does
not
have
a
supporting
statutory/legal frame work.

8. 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 also contends that
no compromise with the good order,
discipline, and the stability of the
academic atmosphere can be made in any
manner.

9. 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

(i) Background

10. The petitioner completed his
master's degree in Social Works (MSW)
from the Banaras Hindu University in the
year 2017. Thereafter he enrolled in the
Post Graduate Degree Course in Integrated
Rural Development and Management
(IRDM) for the academic sessions 201719. The petitioner qualified the National
Eligibility Test in December, 2018. The
petitioner had qualified for admission to
the Ph.D. course, standing second in Ph.D.
admission merit list of the Department of
the Sociology, Faculty of Social Sciences,
Banaras
Hindu
University,
Varanasi.
Before the petitioner could start the Ph.D.
602 INDIAN LAW REPORTS ALLAHABAD SERIES
programme in the BHU, the order dated
30.03.2019 was passed.

(ii)
Suspension
order
:
Consequences

11. The petitioner was suspended
from all privileges and activities of the
University and hostel by order dated
30.03.2019, purportedly passed under
ECR No. 264 of 1979 as contained in
Chapter VIII of the BHU Calender Part I
Volume II, providing for ordinances
governing maintenance of discipline and
grievances procedure.

12. Consequent to the order dated
30.03.2019, the petitioner shall remain
suspended, till his acquittal by the court in
the criminal case. No terminal date can be
set for conclusion of the criminal trial.
Hence the suspension is for an indefinite
period. The suspension order bars the
petitioner from entering the university
campus, or accessing any facilities therein.
All further academic pursuits are denied to
the petitioner during the suspension. The
effect of the order of suspension is
punitive.

(iii) Suspension order : Validity

13. The validity of the impugned
suspension order on its merits shall be
considered in the following sequence. The
material before the authority passing the
order will be examined, followed by the
consideration of scope of the provisions.
Finally
adherence
to
the
procedure
prescribed by law will be tested.

14. The impugned suspension order
dated 30.03.2019 records that an F.I.R.
No. 0115 dated 28.01.2019 under Sections
147, 323, 120-B and 3(1)(da) of SC/ST,
(Prevention of Atrocities) Act, 1989
(amendment 2015), was filed against
various persons including the petitioner at
Police Station Lanka, by Professor X
(names are being anonymized for the
purpose of writ petition). The case in the
F.I.R. is briefly set forth hereafter. The
petitioner
and
other
accused
had
physically assaulted, and made derogatory
caste remarks against the complainant
when the latter was going to take a class in
the
faculty
of
Social
Science
on
28.01.2019. The petitioner was arrested by
the police.

15. The order dated 30.03.2019
references a fact finding enquiry into the
incident of manhandling of Professor X
and finds a prima facie involvement of the
petitioner in the said incident. The order
dated 30.03.2019 recommends appropriate
disciplinary action as per University Rules
against the petitioner.

16. The impugned order dated
30.03.2019 also notices the order of the
Vice Chancellor dated 27.03.2019 for a
detailed
enquiry
into
the
aforesaid
incident.

17. On the foot of the aforesaid
reasoning and material, the impugned
order dated 30.03.2019 suspends the
petitioner from all privileges and activities
of the University.

18. Contents of the enquiry report in
brief, shall be set forth.

19. The enquiry committee in its
report, records that Professor X had posted
"undesirable photographs" of girls students
on his facebook account. This had created
"profuse reactions in student community".
Professor X had admitted to the aforesaid
post, and apologized for the same.
1 All. Anant Narayan Mishra Vs. The Union of India & Ors.
603

20. A written complaint, before the
enquiry committee stated that Professor X had
complained that he was beaten, humiliated, and
forcibly made to wear a garland of shoes, and his
caste was also denigrated. Professor Y, was
named as the instigator and the petitioner was
identified in the said complaint.

21. The enquiry committee, prima facie,
concluded that the complaints against Professor
X, were fabricated only to smear his reputation
and character. Many girls students who had
alleged harassment at the hands of Professor X,
did not appear before the enquiry committee.
However, some girls students had appeared
before the enquiry committee and testified to the
indecent behaviour of Professor X towards
them.

22. The committee found that the
incident was pre-planned and a result of
the rivalry and strained relations between
Professor X and Professor Y. The
committee
also
pointed
out,
the
shortcomings of the teachers which led to
the incident. The committee recommended
that the teachers should remain above
reproach in their character and conduct.

23. From the fact finding committee
report, it is clear that the physical assault
of Professor X was undisputed. The
material in the record which identified the
petitioner, as one of the assaulters also
cannot be seriously disputed on the limited
yardsticks of judicial review. Material in
the record also points to the strained
relationship between Professor X and
Professor Y. The incident was not
spontaneous but a result of instigation of
the students. Conduct of Professor X too,
in some respects was not above board.

24. The Court need not restate the
obvious, that violence in the University
campus against a teacher cannot be
justified under any circumstances.

25. The provision for suspension
empowers the competent authority of the
University to suspend a student from all
privileges and activities of the University,
when such student is "accused of, or
involved in, an offence involving moral
turpitude or heinous crime (including
those involving violence or intimidation)
and is wanted by the police or has been
released on bail in connection with any
such offence, or detained under any
provision,
or
against
whom
Police
investigation or criminal prosecution for
any such offence is pending, of enquiry
under U.P. Goonda Act is initiated;"

26. Lodgement of an F.I.R. for any
criminal offence, does not automatically
lead to a suspension under the aforesaid
provision.

27. The intention of the legislature is
not far to seek. Lodgement of false
criminal cases is not uncommon in the
country. Further criminal trials take an
inordinately long time to conclude. No
terminal date can be set once criminal
proceedings are set in motion.

28. Mechanical exercise of power of
suspension upon mere lodgement of a
criminal case will lead to unintended
consequences. On many occasions it
would lead to an indefinite suspension and
denial of opportunities of education. At
times causing a stigma, without any
enquiry.

29. The provision obligates the
authority, to record its satisfaction whether
the FIR is in respect of an offence
involving moral turpitude, or a heinous
604 INDIAN LAW REPORTS ALLAHABAD SERIES
crime (including those involving violence
and
intimidation).
This
condition
precedent has to be followed before an
order of suspension is passed.

30. Moral turpitude is a phrase of
wide ambit. Some definitions of moral
turpitude, from good authority will be
extracted, to take the discussion forward.
The Black's Law Dictionary defines
"moral turpitude" as under:

"An act of baseness, vileness or
depravity in the private and social duties
which a man owes to his fellow men or to
society in general, contrary to the
accepted and customary rule of right and
duty between man and man."

31. According to Bouvier's Law
Dictionary, meaning of "moral turpitude"
is under:

"Bad
faith,
bad
repute,
corruption,
defilement,
delinquency,
discredit, dishonor, shame, guilt, knavery,
misdoing, perversion, shame, ice, wrong."

32. The mere commission of a criminal
offence will not lead to an inference that the act
is one of moral turpitude. Offences which can
be categorised, as those involving "moral
turpitude", will be depend on the facts of each
case.

33. The scope and terms of such
enquiry were elaborated by the Hon'ble
Supreme Court, in the case of State Bank
of
India
and
Others
Vs.
P.
Soupramaniane, reported at 2019 SCC
OnLine SC 608, by holding that:

"10. There is no doubt that there
is an obligation on the Management of the
Bank to discontinue the services of an
employee who has been convicted by a
criminal court for an offence involving
moral turpitude.Though every offence is a
crime against the society, discontinuance
from service according to the Banking
Regulation Act can be only for committing
an offence involving moral turpitude. Acts
which disclose depravity and wickedness
of character can be categorized as
offences
involving
moral
turpitude.
Whether
an
offence
involves
moral
turpitude or not depends upon the facts
and the circumstances of the case.
Ordinarily, the tests that can be applied
for judging an offence involving moral
turpitude are:

a) Whether the act leading to a
conviction was such as could shock the
moral conscience or society in general;

b) Whether the motive which led
to the act was a base one, and

c) Whether on account of the act
having been committed the perpetrators
could be considered to be of a depraved
character or a person who was to be
looked down upon by the society.
11. The other important factors that are to
be kept in mind to conclude that an offence
involves moral turpitude are :- the person
who commits the offence; the person
against whom it is committed; the manner
and circumstances in which it is alleged to
have been committed; and the values of
the society. According to the National
Incident
-
Based
Reporting
System
(NIBRS), a crime data collection system
used in the United States of America, each
offence belongs to one of the three
categories which are: crimes against
persons, crimes against property, and
crimes against society. Crimes against
persons include murder, rape, and assault
where the victims are always individuals.
The object of crimes against property, for
1 All. Anant Narayan Mishra Vs. The Union of India & Ors.
605
example, robbery and burglary is to obtain
money, property, or some other benefits.
Crimes against society for example gambling,
prostitution, and drug violations, represent
society's prohibition against engaging in
certain types of activities. Conviction of any
alien of a crime involving moral turpitude is a
ground for deportation under the Immigration
Law in the United States of America. To
qualify as a crime involving moral turpitude
for
such
purpose,
it
requires
both
reprehensible conduct and scienter, whether
with specific intent, deliberateness, willfulness
or recklessness."

34. A similar fact based enquiry, will
determine if the offending act was a
"heinous crime (including those involving
violence & intimidation)".

35. Satisfaction of these jurisdictional
prerequisites, is not recorded in the impugned
order. No enquiry in that regard was
conducted. The issue whether the offending act
attributed to the petitioner, fell in the categories
of "heinous crime (including violence and
intimidation) or was an act of moral turpitude",
is wholly absent from consideration. The
impugned order suffers from non application
of mind, and was passed mechanically.

36. In light of the preceding
discussion, this Court finds that the order
dated 30.03.2019 was passed in violation
of ECR No. 264 of 1979, as contained in
Chapter VIII of the BHU Calender Part I,
Volume II, providing for ordinances,
governing maintenance of discipline and
grievances procedure, and is arbitrary.

D. Legal Issues common in all writ
petitions

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

38. 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.

39. 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.

40. 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.

41. 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
606 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

42. 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

43. 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.

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."

44. 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

45. 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
1 All. Anant Narayan Mishra Vs. The Union of India & Ors.
607
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
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
608 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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."

46. 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

47. 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
1 All. Anant Narayan Mishra Vs. The Union of India & Ors.
609
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
categories of punishments depending upon
the nature of indiscipline."

48. 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."

49. 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

50. Sri Rizwan Ali Akhtar, learned
counsel for the UGC has relied on the
610 INDIAN LAW REPORTS ALLAHABAD SERIES
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

51. 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.

52. 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

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

54. The universities cannot avoid a
stand
at
the
decision
point.
By
prevarication at the decision point, the
university may postpone the reckoning,
but cannot escape responsibility.

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

56. 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.

57.