# Piyush Yadav v. Union of India & Ors

- **Citation:** (2020) 2 ILRA 267
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-02
- **Case number:** Writ C No. 22848 of 2019
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/piyush-yadav-v-union-of-india-ors-45277
- **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 40 and 41)

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
268 INDIAN LAW REPORTS ALLAHABAD SERIES
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 78, 107)

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 118, 120 and 122)

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 123 and 135)

E. University - 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

## Text

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2 All. Piyush Yadav Vs. Union of India & Ors.
267
 obtained the status of a bhumidhar with
transferable rights under Section 131-B
also does not have a free choice to transfer
the land to any member of the scheduled
caste. The transfer which is permissible is
to be as per the preferences prescribed.
The order of preference under sub-section
(1) and sub-section (2) are clearly to
subserve the purpose of the legislative
enactment which is for furtherance of the
objective of land reforms and to protect
the vulnerable section of the society from
injustice and exploitation.

40. The prior approval of the
Assistant Collector as required under subsection (4) is thus contemplated so as to
ensure that the permission which is sought
is in accord with the scheme of the
provision under the Section 157-AA and
as per the order of preference provided
under sub-section (1).

41. The application of the petitioner
seeking permission for transfer of the land
parcels having been turned down for the
reason that the permission sought was hit
by sub-section (5) which creates a bar on a
transferee of land under sub-section (1) to
further transfer the land by way of sale or
otherwise before the expiry of a period of
ten years from the date of transfer in his
favour, the orders impugned cannot be
faulted with and the challenge sought to be
raised in the present petition is legally
unsustainable.

42. Counsel for the petitioner has not
been able to dispute the aforementioned
legal
position
with
regard
to
the
restrictions contained under Section 157AA and in particular the restriction with
regard to a transfer by a transferee within a
period of ten years from the date of
transfer in his favour.

43. No other ground was urged.

44. The writ petition thus lacks merit
and is accordingly dismissed.
----------
(2020)02ILR A267

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2019

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 22848 of 2019

Piyush Yadav ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Gaurav Pundir

Counsel for the Respondents:
A.S.G.I., Sri Krishna Raj Singh Jadaun, Sri
Om Prakash Yadav, Sri Rijwan Ali Akhtar,
Sri Vikram D. Chauhan, Sri Ajit Kumar
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 40 and 41)

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
268 INDIAN LAW REPORTS ALLAHABAD SERIES
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 78, 107)

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 118, 120 and 122)

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 123 and 135)

E. University - 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 148, 149, 152
and 160)

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
knowledge and wellness like yoga, meditation,
vipassana and so on may prove to be rich
resources to benefit from. (Para 175, 176 and
177)

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 byproduct 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 139 and 180)

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.
2 All. Piyush Yadav Vs. Union of India & Ors.
269
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)

(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
270 INDIAN LAW REPORTS ALLAHABAD SERIES
(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 instituted the
instant writ petition with a prayer to direct
the respondents to decide the mercy appeal
filed by him against the order dated
31.05.2019, passed by the Registrar,
Indian Institute of Technology, Banaras
Hindu University, Varanasi, within a
stipulated period of time.

3. The only prayer made by Sri
Gaurav Pundir, learned counsel for the
petitioner is that the petitioner may be
permitted to continue his studies along
with the reform, self development and
rehabilitation programme. The petitioner
undertakes to unconditionally join and
diligently
pursue
the
reform,
self
development
and
rehabilitation
programme, as may be created by the
University but he may be permitted to
pursue his studies.

4. The relief was moulded by the
learned counsel for the petitioner, at the
time of the arguments. In the interest of
justice and expeditious disposal and in the
light of submissions of the parties, the
formal amendment to the relief clause is
dispensed with.

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
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 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
2 All. Piyush Yadav Vs. Union of India & Ors.
271
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 a student of
B.Tech (Mechanical Engineering) in the
IIT BHU. The petitioner is currently
studying in the final year of the
B.Tech(Mechanical Enginnering) course.
It is stated in the writ petition that the
petitioner has passed seven semesters
successfully.

13. The order dated 31.05.2019,
records that an incident of physical assault
and manhandling between two groups of
students happened in the University
campus on 18.04.2019. The petitioner was
found to be involved in the incident.

14. The enquiry committee found
that the petitioner tried to influence the
aggrieved students and threatened them
from disclosing his name before the
enquiry
committee.
The
enquiry
committee noted, that the petitioner along
with some outsiders, are notorious for
disturbing the atmosphere of the campus.
The petitioner had created an atmosphere
of fear, in the fellow students.

D. Legal Issues common in all writ
petitions

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

16. 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.

17. 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.

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

19. 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.

20. 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

21. 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."

22. 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

23. 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
2 All. Piyush Yadav Vs. Union of India & Ors.
273
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
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
274 INDIAN LAW REPORTS ALLAHABAD SERIES
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
Vice-Chancellor and Academic Council
of the University."

24. 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
2 All. Piyush Yadav Vs. Union of India & Ors.
275

25. 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."

26. 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
276 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

27. 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

28. 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

29. 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.

30. 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

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

32. 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.

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

34. 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.

35. 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
2 All. Piyush Yadav Vs. Union of India & Ors.
277

36. 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

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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
278 INDIAN LAW REPORTS ALLAHABAD SERIES
was alerted, to the need of a legislation to
cover the field, by the judgment of the
Hon'ble Supreme Court.

43. 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

44. 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.

45. 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.

46. 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.

47. 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.
2 All. Piyush Yadav Vs. Union of India & Ors.
279

48. Debate on these issues will pave
the way for the most important change, i.e.
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

49.

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.

50. 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.