Courts Update Supreme Court issues notice in plea of BA final...

Supreme Court issues notice in plea of BA final year student rusticated for anti-CAA protest

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New Delhi Sept 6(ILNS): The Supreme Court issued a notice in a plea filed by a student of final year BA (History)(Hons) who was removed from the “Khwaja Moinuddin Chishti Urdu, Arabi-Farsi University,” for allegedly attempting to organize protests against Citizenship Amendment Act, 2019 (CAA). 

Today the Supreme Court two-judge bench led by Justice Sanjay Kishan Kaul and Justice M.M Sundresh has said, “University is a place for education and the conduct shows that education is least in your mind.” 

The learned senior counsel Huzaifa Ahmadi appearing for the petitioner submitted that his career is at stake as he is a last-year student and he has completed all 5 semesters (out of a total of 6 semesters) with above average marks and only examination of the last and final semester is left. He said, the protests were called off by him and were not organized and still Chancellor of the University passed an order confirming his rustication.

The learned senior counsel requests the court that the petitioner should be permitted to take the final year examination as his career is at stake.

“Does the student have the minimum required attendance in all subjects?” the court asked.

The learned senior counsel after discussing it with the Advocate-on-record replied that there is no problem in the attendance.

The court keeps the question open till the next date of hearing that if the student should be allowed to take the examination and issued notice to all the parties in this matter.

The court concluded the hearing by enunciating, “we want that he should complete the graduation.”

Background 

The petitioner approached the court challenging the passed by the Hon’ble Allahabad High Court, Lucknow Bench, dismissing the writ petition and upholding the order of the University to rusticate the Petitioner.

The allegations against the petitioner were that on December 17, 2019, the Petitioner shared a post via his Account on the social media platform “Facebook” from another Facebook account named “Chaatr Chintak Sabha”. The said post called upon the students of the Respondent University to gather in the University Campus and Peacefully express their dissent and protest against the Citizenship (Amendment) Act 2019, which was passed by the Parliament of India on December 11, 2019. The said post called upon the students to channelize the spirit of Sufism as well as non-violence as preached by Mahatma Gandhi, to uphold the secular structure of India, and exercise their fundamental right to peacefully protest.

“That for sharing / posting this message calling for a peaceful protest gathering, the Petitioner was promptly rusticated from the Respondent University without notice or any opportunity of hearing. That even before the order for the Petitioner rustication was passed, the Petitioner had himself withdrawn his call for protests within the campus in view of large-scale violence that occurred around the county at this time. In fact, there were no protest gatherings within the campus of the Respondent University in respect of the Citizenship amendment laws that were organized by the Petitioner, that in fact, it was widely reported in various daily newspapers that no protest gatherings/marches by students could be organized within the campus of the Respondent University as heavily police units, along with PAC and Rapid Action Forces, had already been posted there well in advance and maintain entrance to the University had been barricaded,” said the plea.   

It added, “The main reason of rustication of the Petitioner was that he was organizing a peaceful protest on Citizenship Amendment Act (CAA) and National Register of Citizens (NRC), which is not in any case violation of law and right to peaceful protest is bestowed to Indian citizens by our Constitution. The Petitioner has always been active in student politics, and the rustication order of the Respondent No. 1 University is merely an attempt to stifle his right to freedom of speech and expression.”

The petitioner cited the order of the Supreme Court stating that the  Court has upheld the right to protest peacefully as part of a fundamental right in a catena of cases, more recently in Rakesh Vaishnav v. Union of India reported in 2020 SCC OnLine SC 1032, wherein this Hon’ble also observed, with respect to the right to protest, that there can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with the law.  

The petitioner has approached the Supreme Court on grounds that;

Non-consideration of material facts: – The Hon’ble High Court has not appreciated material and relevant facts like non-communication of charges to the Petitioner, the report of the seven-member committee which came out several months later than the order that was said to be based on it, and the fact that the Petitioner has in fact been rusticated for exercising his fundamental rights and raising his voice against the CAA.  

Violation of Natural Justice: – It is submitted that the various orders passed by the Respondents as well as the report of the seven-member committee against the Petitioner are in violation of established principles of natural justice, particularly the rule of a fair hearing. V.R. Krishna Iyer, J. writing for the bench in Nawabkhan Abbaskhan v. the State of Gujarat reported in (1974) 2 SCC 121 laid down the ratio that an order which infringes fundamental freedom passed in violation of the audi alteram partem rule is a nullity. 

Double jeopardy: – It is submitted that the other charges that were put to the Petitioner have been already dealt with in the past, either by way of punishment or apology, and he cannot be penalized for the same again. 

Violation of fundamental rights: – It is submitted that the Petitioner has a fundamental right guaranteed under Article 19(1)(a) to express himself freely and the same has been sought to be curtailed by the Respondents by rusticating him and making an example out of him so as to deter others from voicing their dissent. 

Disproportionate punishment: – It is submitted that it is trite law that the punishment imposed must be commensurate with the act and not in excess of it, which itself makes the penalty imposed liable to be set aside.  

Furthermore, he stated that the Hon’ble Karnataka High Court, in T.T. Chakravarthy Yuvaraj v. Principal, Dr. B.R. Ambedkar Medical College reported in AIR 1997 Kar 261, has taken the view that as regards the right of hearing, the law is settled and stated to be that a college cannot dismiss the student except on a hearing in accordance with a lawful form of procedure, giving him the notice of the charge and an opportunity to hear the testimony against him, to question witnesses, and to rebut the evidence. While the students are at liberty to terminate their relationship with the Institution at any time, it does not follow that the college has similar rights. The power to expel a student is an attribute of the governance of the educational institution. A college cannot arbitrarily dismiss a student. /ILNS/HS/KR/SNG

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