# Shahbaz Ali Khan v. Union of India & Ors

- **Citation:** (2020) 2 ILRA 317
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-02
- **Case number:** Writ C No. 29363 of 2019
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shahbaz-ali-khan-v-union-of-india-ors-45285
- **Pages:** 35

## 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 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 136)

E. Civil Law- Its role and contribution -
Preservation of Constitutional values -
University is a paternal institution - It is a
microcosm of the Society - There are no other
institutions of equal standing, to engage with
the youth, deal with the discontent or
aberration, and channelize youthful energies -
The role of the University does not end in
punishing perpetrators of violence. It begins
with the identification of the causes of violence,
communal hatred, and other forms of deviant
conduct - Thereafter the responsibility to
achieve behavioral change commences - The
universities have the responsibility, to preserve
this heritage, and the obligation to nurture
these constitutional values. (Para 149, 150, 153
and 161)

F. Nudge - Methodology - Behavioral
Change - Importance of Yoga, Meditation and
Vipassana - The methodology of 'nudges', in
318 INDIAN LAW REPORTS ALLAHABAD SERIES
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 176, 177 and
178)

G. Therapeutic Approach - Sig

## Text

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2 All. Shahbaz Ali Khan Vs. Union of India & Ors.
317
(2020)02ILR A317

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2019

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 29363 of 2019

Shahbaz Ali Khan ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kumar Anish

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

A. Constitution of India - Fundamental
Rights - Nature - The text of the Constitution,
is a conceptual philosophy of fundamental
rights, and not an exhaustive guide to
fundamental
rights
-
The
text
of
the
Constitution is fixed, fundamental rights are
always evolving. This is the essence of
constitutional law jurisprudence - Evolution of
constitutional law rights are guided and
controlled by the text of the constitution, long
settled judicial principles of interpretation of
the constitution, and judicial precedents in
point - The march of law is also assisted by
consensus of values, in the comity of civilized
nations. (Para 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 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 136)

E. Civil Law- Its role and contribution -
Preservation of Constitutional values -
University is a paternal institution - It is a
microcosm of the Society - There are no other
institutions of equal standing, to engage with
the youth, deal with the discontent or
aberration, and channelize youthful energies -
The role of the University does not end in
punishing perpetrators of violence. It begins
with the identification of the causes of violence,
communal hatred, and other forms of deviant
conduct - Thereafter the responsibility to
achieve behavioral change commences - The
universities have the responsibility, to preserve
this heritage, and the obligation to nurture
these constitutional values. (Para 149, 150, 153
and 161)

F. Nudge - Methodology - Behavioral
Change - Importance of Yoga, Meditation and
Vipassana - The methodology of 'nudges', in
318 INDIAN LAW REPORTS ALLAHABAD SERIES
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 176, 177 and
178)

G. Therapeutic Approach - Significance -
To solve Social Problem - Under the
therapeutic method, however, an individual's
happiness depends on his or her self-esteem,
and self-esteem is a by-product of public
recognition - With the rise of therapeutic
approaches
by
mid
century,
they
were
increasingly seen as social pathologies that
needed to be treated through counseling and
psychiatric intervention - Therapeutic solutions
to social problems, are being increasingly
recognized by social scientists, medical experts,
psychologists, and jurists alike. (Para 140 and
181)

Writ Petition disposed of. (E-1)

List of cases cited :-

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

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

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

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

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

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

7. Prem Shankar Shukla v. UT of Delhi (1980) 3
SCC 526
8. Francis Coralie Mullin v. UT of Delhi (1981) 1
SCC 608

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

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

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

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

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

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

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

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

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

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

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

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

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

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

23. Armoniene v. Lithuania (2009) EMLR 7

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

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

26. Bijoe Emmanuel and others vs. State of
Kerala and others (1986) 3 SCC 615
2 All. Shahbaz Ali Khan Vs. Union of India & Ors.
319
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)
 20

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

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

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

A. Reliefs sought

2. The prayer made by Sri Kumar
Anish, learned counsel for the petitioner is
that the appeal of the petitioner may be
decided within a stipulated period of time
and his case may be considered for
pursuing his studies as part of the reform,
self
development
and
rehabilitation
programme which is proposed to be
created in the University.

3. The second prayer made by Sri
Kumar Anish, learned counsel for the
petitioner is that the petitioner may be
permitted to continue his studies as part of
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 second 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 counsel
for parties
320 INDIAN LAW REPORTS ALLAHABAD SERIES

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 any reform and
rehabilitation of delinquent students in the
statutes, which results in violation of the
fundamental
right,
of
the
petitioner
guaranteed under Article 21 of the
Constitution of India.

6. 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 and
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
adopt a professionally designed, reform
and
rehabilitation
programme
for
delinquent students. However, the 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. However, he fairly conceded
that the programme is not fully developed,
and
does
not
have
the
necessary
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
and discipline, and the stability of the
academic atmosphere, can be made in any
manner.

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

C. Facts

12. The petitioner is a student, who
was pursuing a diploma course in Civil
Engineering
from
the
respondent
University. The petitioner was charged
with threatening a Professor of the
University, and pressurizing him to allot
marks, in the practical examination,
wherein he had infact not appeared.

13. When the professor declined to to
so,
the
petitioner
and
his
brother,
misbehaved with professor. Subsequently
the petitioner and his brother, came to the
Survey Lab of the University Polytechnic,
and assaulted the professor; further the
petitioner opened fire at the professor with
intention of killing him. The Professor,
however, managed to save his life. The
incident happened in the presence of the
staff of the University.
2 All. Shahbaz Ali Khan Vs. Union of India & Ors.
321

14. The disciplinary enquiry into the
incident indicted the petitioner. The
petitioner was thereafter expelled from the
University by order dated 28.03.2019 for a
period of 5 years. The petitioner has
preferred an appeal before the University
authority.

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
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
322 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
2 All. Shahbaz Ali Khan Vs. Union of India & Ors.
323
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
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
324 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

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

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
2 All. Shahbaz Ali Khan Vs. Union of India & Ors.
325
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 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
326 INDIAN LAW REPORTS ALLAHABAD SERIES

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

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
2 All. Shahbaz Ali Khan Vs. Union of India & Ors.
327
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 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
328 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

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.

51. 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
2 All. Shahbaz Ali Khan Vs. Union of India & Ors.
329
never denying revelation as a source,
insists on realization as its goal.

52. 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

53.

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

54. 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. With learning they
will understand, that diversity enriches
human
life,
and
does
not
divide
humankind. University experience will
help them, cultivate constitutional values,
and
transcend
violent
and
other
aberrational tendencies.

55. Universities are not teaching
shops, nor are they mere examining
bodies.