The JNUTA welcomes the fifteen judgments of the Delhi High Court on the farcical proceedings of the “High-Level Appeals Committee” and the Appellate Committee set up in June 2016 thereafter. It will be recalled that fifteen students had approached the Delhi High Court in May 2016 on the gross violations of the principles of natural justice in the proceedings of the HLEC at which time, the DHC put a stay on the orders of punishment. The Court ordered the university to hear an appeal by each of the petitioners. These proceedings were conducted in mid-June 2016, and ‘final’ penalties were notified on 22 August 2016. Aggrieved by these, the students once again drew the attention of the court to the travesty of justice in the Appeals Committee process.
The JNUTA has stood steadfast in its opposition to the HLEC and Appeals Committee process, in which penalties have been awarded to the students without even the slightest hint of due process informing the whole procedure. Such support was crucial in February to March 2016, when the atmosphere of ever-growing fear and physical insecurity, and the constant clamour of television channels airing doctored videos, the 24X7 broadcast of WhatsApp tales of ‘JNU ka Sachh’, and histrionic performances of HLEC circulars in the Indian Parliament, made it clear that the HLEC proceedings were part of a conspiracy of defamation and repression. This support and solidarity has remained steadfast thereafter, for one main reason — the teachers’ unwavering belief that inquiry and penalty are only just when the impartiality, fairness, honesty, responsiveness, and ethical conduct of those who sit in judgment is demonstrated beyond reasonable doubt. As time has shown the whole JNU community, none of these qualities could credibly be said to characterise the JNU administration headed by Prof. Jagdeesh Kumar, either then or now. Today, in the judgments pronounced on Friday, the Hon. Delhi High Court show how correct JNU students and teachers have been.
What’s the final order?
The judgments delivered in all the cases, even as they differ in addressing the particular facts of each writ and in detailing the arguments of the different lawyers involved, do not set aside the penalties imposed on the 15 students (as has been reported in the press) but hold them in abeyance. The Court has remanded the matter back to the Appellate Authority with directions to:
- Grant each petitioner an opportunity of inspection of the full records of the HLEC for two continuous days during office hours. Each petitioner must be satisfied well in advance.
- Give each petitioner one week time after such inspection to file a Supplementary Appeal.
- Give each petitioner a hearing after such a Supplementary Appeal has been filed on a time and date notified by the Appellate Authority.
- Give careful consideration to the Appeals made to it and pass a final order within six weeks of the hearing given to each petitioner.
Until such time as the final order, the punishments awarded to each petitioner is held in abeyance.
The deliberate incompetence of authoritarianism
The JNUTA would have of course liked to see the HLEC and Appeals Committee orders and reports quashed, but even as it is, there is no doubt that both the operative and the substantive parts of the judgments are a severe embarrassment to JNU and its less-than-competent counsel, because the Court has made it crystal clear that the procedure employed by the Appeals Committee was unfair and illegal:
- “The procedure evolved by the Appellate Committee to allow inspection of the documents/records and hearing him could not be in conformity with the principles of natural justice and the law laid down by the Supreme Court in the case of Associated Cement Company Ltd. v. Workmen and another (1964) 3 SCR 652. …The Supreme Court has held that an incumbent should be given sufficient opportunity/time to consider the evidence, which has come against him and to collect evidence in support of his defence. In the case in hand, no such time was given to the petitioner. That apart, if the material is being shown to the petitioner, on June 16, 2016, surely, some time should have been given to the petitioner to enable him to supplement his appeal already filed by him on June 03, 2016. This would be in conformity with the concept of fair play in action, which is the basis of natural justice.”
- “The petitioner in his appeal has raised several grounds but the Appellate Authority has not dealt with those grounds.” …The Supreme Court in the case reported as (2013) 6 SCC530 Chairman, Life Insurance Corporation of India and others v. A. Masilamani, in para 19 held as under:- “19. The word “consider”, is of great significance. The dictionary meaning of the same is, “to think over”, “to regard as”, or “deem to be”. Hence, there is a clear connotation to the effect that, there must be active application of mind. In other words, the term “consider” postulates consideration of all relevant aspects of a matter. Thus, formation of opinion by the statutory authority, should reflect intense application of mind with reference to the material available on record. The order of the authority itself, should reveal such application of mind. The appellate authority cannot simply adopt the language employed by the disciplinary authority, and proceed to affirm its order. (Vide: Indian Oil Corpn. Ltd. & Anr. v. Santosh Kumar, (2006) 11 SCC 147; and Bhikhubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr., AIR 2008 SC 1771).” In view of the aforesaid judgment of the Supreme Court, it is expected that the Appellate Authority should have disposed off the appeal by a reasoned and speaking order.”
- The Court has also noted with disapproval the fact that the complete HLEC records were not made available either to the petitioners during the appeals process or to the court: “Even in these proceedings, the respondent has not filed, the complete record of the HLEC. In fact, in some of the connected petitions, a stand has been taken in the written submissions that only certain documents relied upon by HLEC were filed before this Court and the entire evidence, documents, notices and proceedings are maintained by the respondent in its official files. The same are available for any other scrutiny as and when the same is requisitioned before the Court. Even if some depositions were filed along with the written arguments in some connected cases, the same were in Hindi. …Even otherwise, the HLEC report refers to deposition of some eye witnesses, which are in the deposition files. It is not clear, who these witnesses are, who are being referred to. All the evidence, documents, notices and proceedings being in the official files, there was no occasion for this Court/counsel for the petitioner to look into the same for a proper appreciation/justification of the impugned orders.”
The judgments also rout every single argument made by the JNU lawyer, Ms. Ginny Routray, finding all her arguments to be either “irrelevant” or of “no applicability to the facts of the case at hand”.
This scathing criticism of the complete lawlessness of the JNU administration gives the JNUTA a sense of vindication, but it doubts that any lessons will be learnt as far as natural justice is concerned. Furthermore, given that only the JNU administration knows what the HLEC records were (JNU didn’t supply them to the DHC either), it is apprehensive of the possibility of them being tampered with. The JNUTA can only hope that a fear of another schooling by the DHC shall encourage self-restraint, because this time, the petitioners shall have the directions and observations of the High Court on their side. Perhaps, the Vice-Chancellor shall now learn the legal meaning of the word ‘appeal’, as until now he seems to think it to be a mercy petition that involved students grovelling before him, so far removed he is from the discourses of rights, responsibilities.
A moment for celebration of solidarity
The JNUTA would like to express its heartfelt thanks to the dozen or so lawyers that have worked ceaselessly on this matter for over a yea, and particularly Rebecca John, Malavika Rajkotia, Nitya Ramakrishnan, Akhil Sibal, and Jawahar Raj. JNU teachers and students will remain forever in your debt. If it were not for these lawyer’ unflinching solidarity, the grim situation today would have been orders of magnitude worse.
It is also a time to celebrate the teacher-student solidarity that has been shown in the process of challenging the HLEC punishments. From supportive relay hunger strikes and sit-ins in May last year to coordinating various aspects of the legal cases, JNU teachers have demonstrated an incomparable commitment to a JNU that has justice at its core. Friday’s court verdict encourages all of us to believe, even as the possibility of fair play inside our institution is now foreclosed, that the fight is not over as long as we choose to stay in it.
Ayesha Kidwai Pradeep Shinde