# Mohammad Ghayas v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-02
- **Case number:** Writ C No. 26755 of 2019
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-ghayas-v-state-of-u-p-ors-45252
- **Pages:** 38

## Headnote

C.S.C., Sri Shashank Shekhar Singh, Sri
Abrar Ahmad, Sri Rizwan Ali, Sri Vinod
Kumar Shukla

Petitioner
debarred
over
an
alleged
incidence
of
voilence-debarred
by
University-order debarring bad-passed in
mechanical
manner-prospects
of
reformation
of
young
adult
to
be
considered-W.P. partly allowed.

Cases Cited

## Text

_Characters 0–39,944 of 117,710. This is a partial read: ask again with offset=39944 for what follows._

1806 INDIAN LAW REPORTS ALLAHABAD SERIES
read
in
acclamation
to
terms
and
conditions provided under each agreement
between the parties.

13. Thus, we do not find any merit in the
arguments advanced by learned counsel for the
petitioner that the Government Orders suffers
from an illegality as such so as to hold it bad.
Neither
the
exercise
in
issuing
such
Government Order is found arbitrary nor
content thereof in any manner are found to be
against the public policy and/or public interest.
We do not find it to be in any manner vitiated
for any bias or perversity in providing for a
period black listing. Thus, we decline to
interfere in the present writ petition.

14. However, we hastened to add that
every agreement has its own sanctity which
is to be maintained and in case if the terms
and conditions are violated and during
inspection the transformers are found to be
defective the action shall be taken strictly in
accordance with law within the four corners
of the terms and conditions entered between
the parties qua the contract. And we may
further observe that in case, if the individual
has been visited with the penalty of black
listing, it is always open for such individual
to approach this Court against the order of
the black listing and each case is to be tested
on its own facts.

15. The writ petition, with the
aforesaid observations, is consigned to
records.
----------
(2020)02ILR A1806

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2019

BEFORE

THE HON'BLE AJAY BHANOT, J.
Writ C No. 26755 of 2019

Mohammad Ghayas ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sri Arvind Kumar Upadhyay, Sri Sanjay
Pathak

Counsel for the Respondents:
C.S.C., Sri Shashank Shekhar Singh, Sri
Abrar Ahmad, Sri Rizwan Ali, Sri Vinod
Kumar Shukla

Petitioner
debarred
over
an
alleged
incidence
of
voilence-debarred
by
University-order debarring bad-passed in
mechanical
manner-prospects
of
reformation
of
young
adult
to
be
considered-W.P. partly allowed.

Cases Cited

1. Rattan Chand Hira Chand v. Askar Nawaz Jung,
reported at (1991) 3 SCC 67

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

3. Avinash Negara vs. Navodaya Vidyalaya Samiti and
others (1997) 2 SCC 534

4. Ajay Singh Vs. Union of India and Others

5. Sajjan Singh v. State of Rajasthan, reported at AIR
1965 SC 845

6. Kesavananda Bharati v. State of Kerala, reported at
(1973) 4 SCC 225.

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

8. Olga Tellis v. Bombay Municipal Corpn. Reported at
(1985) 3 SCC 545)
2 All. Mohammad Ghayas Vs. State of U.P. & Ors.
1807
9. Prem Shankar Shukla v. UT of Delhi, reported at
(1980) 3 SCC 526

10. Francis Coralie Mullin v. UT of Delhi

11. Bandhua Mukti Morcha v. Union of India, reported
at (1984) 3 SCC 161

12. Khedat Mazdoor Chetna Sangath v. State of M.P.,
reported at (1994) 6 SCC 260

13. M.Nagaraj v. Union of India, reported at (2006) 8
SCC 212

14. Shabnam v. Union of India, reported at (2015) 6
SCC 702

15.Jeeja Ghosh v. Union of India, reported at
(2016) 7 SCC 761

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

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

18. T.K. Gopal v. State of Karnataka, reported at
(2000) 6 SCC 168

19. Bijoe Emmanuel and others vs. State of
Kerala and others, reported at (1986) 3 SCC 615

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

21. K.S. Puttaswamy v. Union of India reported
at (2017) 10 SCC 1
22. Armoniene v. Lithuania, reported at (2009)
EMLR 7

23. ET AL. Vs. Martinez ET AL. reported at 416
U.S. 396 (1974) (US Supreme Court)
24. Avinash Nagra Vs. Navodaya Vidyalaya Samiti and
Others, reported at (1997) 2 SCC 534

25. Devarsh Nath Gupta Vs. State of U.P. and Others,
reported at 2019(6) ADJ 296 (DB)

26. Ranjit Thakur Versus Union of India, reported at
(1987) 4 SCC 611

(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
1808 INDIAN LAW REPORTS ALLAHABAD SERIES
(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

2. By order dated 22/23.08.2016, the
petitioner was debarred from the University for
six academic sessions 2016-17.

3. By order dated 23.03.2019, the
representation of the petitioner for revocation
of the debarment of the petitioner for
admission in any course in the AMU for six
academic sessions commencing from 2016-17
which he intends to pursue in University, was
rejected.

4. The petitioner has passed his Diploma
in Engineering (Mechanical Production) from
the respondent University.

5. The petitioner has assailed the order
dated 23.03.2019 passed by the respondent no.
4, Proctor, Aligarh Muslim University, Aligarh
and the order dated 22/23.08.2016 passed by
the respondent no. 2, Vice Chancellor, Aligarh
Muslim University, Aligarh, in the instant writ
petition.

6. The petitioner has also prayed for a
writ in the nature of mandamus to command
the respondents to permit him for further
studies in the University.

B. Arguments of the learned counsel for
parties

7. 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.

8. 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.

9. 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.

10. 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.

11. 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
2 All. Mohammad Ghayas Vs. State of U.P. & Ors.
1809
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.

12. 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.

13. 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

14. The order of expulsion and
debarment
dated
22/23.08.2016
was
passed on the foot of an incident of
violence, which happened on 07.12.2015.
The office memo dated 22.08.2016,
records that some persons including one
Osama Javed, an anti-social element
brutally assaulted some students of the
University namely Mohd. Sadiq and and
Aatif Afaq. They also opened fire with a
country made pistol (Katta). The finding
of disciplinary committee against the
petitioner is set forth below:

"Aforementioned student, Mohd.
Ghayas
has
recently
completed
his
Diploma Engineering and presently doing
a job in Gurgaon. He was a NRSC student
and had no reason to be involved in the
assault with Naved Ahmad Khan on
07.12.2015."

15. The incident of violence
happened on 07.12.2015, when some
persons while possessing a country made
pistol (Katta), baseball bat and iron rod
and physically assaulted Naved Ahmad
Khan, an ex-student, causing severe
injuries. Injured Naved Ahmad Khan had
undergone an ankle fracture surgery.

16. The proceedings were instituted
against
the
accused,
including
the
petitioner, by registration of FIR No.
780/15, under Section 323, 325 and 506
IPC. The petitioner was expelled from the
University and barred from admission to
any courses for six academic sessions by
order dated 22/23.08.2016.

17. The petitioner was acquitted
of the charges against him by learned
trial court in criminal case no. 8479 of
2016, State Vs. Mohd. Khalid and
others, by the learned Chief Judicial
Magistrate,
Aligarh.
Despite
the
acquittal,
the
petitioner
was
not
permitted, to pursue his studies in the
University.

18. Thus aggrieved, the petitioner
upon his acquittal, approached this
Court, by instituting a writ petition.
The petitioner wanted pursue his
academic courses, and evolve into a
law abiding citizen of the country. The
aforesaid writ petition instituted by the
petitioner is Mohd. Ghayas Vs. Rajya
Uttar Pradesh Dwara Pramukh Sachiv
Shiksha and others, registered as Writ
C No. 5403 of 2019 was disposed of by
a judgment and order rendered on
15.02.2019. The the judgment is being
extracted hereunder in extenso:
1810 INDIAN LAW REPORTS ALLAHABAD SERIES

"The petitioner was debarred
from the University for six academic
sessions from 2016-17 on the count that
the petitioner involved in a criminal case.

Submission of learned counsel
for the petitioner is that the petitioner has
been exonerated in the criminal case by
the competent trial court. The petitioner
has
moved
an
application
for
reinstatement in the University to enable
him to pursue his course.

Learned
counsel
for
the
petitioner submits that the petitioner has
made
an
application
to
the
Vice
Chancellor, Aligarh Muslim University,
Aligarh for revocation of the order of
debarment. He submits that the petitioner
is desirous to further pursue his academic
career.

The only prayer made by the
learned counsel for the petitioner is that
the application for revocation of the order
of debarment of the petitioner and for
admission in any other course which he
intends to pursue in the University, may be
decided within a stipulated period of time.

Sri Shashank Shekhar Singh,
learned
counsel
for
the
respondent
University in his usual fairness does not
dispute the aforesaid prayer.

Matter
is
remitted
to
the
respondent no. 2 Vice Chancellor, Aligarh
Muslim University, Aligarh.

A writ of mandamus is issued
commanding the respondent no. 2, Vice
Chancellor, Aligarh Muslim University,
Aligarh to decide the application of the
petitioner for revocation/recalling of the
order of debarment within a period of one
month. While deciding the representation
of the petitioner, the Vice Chancellor,
Aligarh Muslim University, Aligarh shall
keep in mind the prospects of reformation
of a young adult. The petitioner may be
given a chance to redeem himself and
efface the taint of the past by good conduct
in future.

However, it is clarified that this
Court has not prejudged the issue. It is
open to the Vice Chancellor, Aligarh
Muslim University, Aligarh to decide the
matter as per law.

The writ petition is disposed of
finally."

19. In compliance of the order, the
Proctor, AMU passed an order dated
23.03.2019, which is also impugned in this
writ petition.

D. Legal Issues common in all writ
petitions

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

21. 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.

22. 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.

23. In response, all the counsels for
the various respondents universities', in
2 All. Mohammad Ghayas Vs. State of U.P. & Ors.
1811
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.

24. 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.

25. 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) The response of IIT BHU

26. 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."

27. 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

28. 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:
1812 INDIAN LAW REPORTS ALLAHABAD SERIES

"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
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
2 All. Mohammad Ghayas Vs. State of U.P. & Ors.
1813
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.

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 Vice-Chancellor
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 ViceChancellor and Academic Council of
the University."
1814 INDIAN LAW REPORTS ALLAHABAD SERIES

29. 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

30. 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
categories of punishments depending upon
the nature of indiscipline."

31. 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
2 All. Mohammad Ghayas Vs. State of U.P. & Ors.
1815
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."

32. 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

33. 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

34. 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.

35. 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

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

37. 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.

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

39. 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.

40. 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,
1816 INDIAN LAW REPORTS ALLAHABAD SERIES
have to stand up and intervene and not
stand by and equivocate.

F. Evolution of Fundamental Rights
by courts

41. 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

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

47. 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.
2 All. Mohammad Ghayas Vs. State of U.P. & Ors.
1817

48. 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

49. 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
sciences and across other fields of highly
specialized knowledge.

50. 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.

51. 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.

52. 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.

53. Debate on these issues will pave
the way for the most important change, i.e.
1818 INDIAN LAW REPORTS ALLAHABAD SERIES
change in mindset. For the process to be
credible and efficacious, a change has to
come from within the judicial system. But
change
is
inevitable,
if
judicial
adjudication is to be just and remain
relevant. In this regard, the High Court has
a responsibility to fulfill, if not an
obligation to discharge.

H. Education

(i) Importance and scope

"Where the mind is without fear

and the head is held high,

Where knowledge is free".

 ~Tagore

54. In education mankind discovered
the message of unquenchable optimism,
that humans could be separated from the
cycle of repetitive thought and action.
Learning was the key to the uninterrupted
progress of any society. Knowledge
instilled the belief that human life could be
improved. Through knowledge alone, the
hope is realized that humans can be
reformed,
and
humanity
can
be
transformed. Education is the supreme act
of nation building, which essentially
means nurturing of constitutional values,
realization of constitutional goals, and
strengthening the rule of law.

55. The idea of the Indian nation is
founded, on the ideals of the Indian
civilization. Many of these ideals are
manifested in the Constitution, and find
expression in constitutional law.

56. The quest for knowledge defines
the Indian civilization. A salient feature in
the search for learning, distinguishes the
Indian civilization. Knowledge in Hellenic
civilization was founded on reason. The
human thirst for knowledge was also
quenched by revelation. The distinctive
feature of learning in Indian civilization, is
that India's search for knowledge, while
always embracing reason as a method and
never denying revelation as a source,
insists on realization as its goal.

57. The diversity of thought is
reflected in the plurality of discourse in
India. The enduring values which define
India, have been preserved and propagated
by the tradition of civilized debate. The
unity of our nation is protected by respect
and affirmation of a multi hued cultural
heritage and embracement of varied
traditions of thought.

(ii) Role and obligation of
universities

"Where the mind is led forward
by thee

Into ever widening thought and
action."

Tagore

58.

The
universities
are
the
custodians of the old values, even as they
ceaselessly push the boundaries of modern
knowledge.

59. In universities students of diverse
backgrounds,
and
different
beliefs,
congregate in a common pursuit of
knowledge. Through knowledge they will
learn, that humanity unites more than
diversity differentiates.