Delhi High Court
Jawaharlal Nehru University vs Geeta Kumari, President Jnusu & ... on 3 July, 2018
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: May 01, 2018
Judgment delivered on: July 03, 2018
+ CONT.CAS(C) 110/2018
JAWAHARLAL NEHRU UNIVERSITY
..... Petitioner
Through: Ms. Monika Arora, Standing Counsel
with Mr. Vibhu Tripathi, Mr. Kushal
Kumar and Mr. Harsh Ahuja, Advs.
versus
GEETA KUMARI, PRESIDENT JNUSU & ORS.
..... Respondents
Through: Mr. Akhil Sibal, Sr. Adv. with
Mr. Gopal Sankaranarayan,
Mr. Govind Manoharan and Mr. Abhik
Chimani, Advs.
CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. The present petition under Article 215 of the Constitution of India read
with Sections 2(B) and Section 12 of the Contempt of Courts Act, 1971 has
been filed by the petitioner Jawaharlal Nehru University inter alia seeking
action against the respondents for disobedience of order dated August 9, 2017
with a further direction to them not to assemble, protest, dharna, march,
blockade, use of public address system within 100 meters of the
Administrative Block and not to stop ingress and egress of the officials to the
Administrative Block. The relevant paras 5 to 9 of order dated August 9,
2017 read as under:
"5. Considering the present situation, it is directed that no
protest of any sort shall be undertaken by the students
within 100 meters radius of the Administrative Block. The
University authorities shall earmark an area where the
students can congregate freely to protest.
6. Ms Monika Arora, learned counsel appearing for the
petitioner has drawn the attention of this Court to a map
of the university campus (Annexure P-5) which indicates
that on the left hand top of the site, there is an open area,
which this Court is informed is known as Sabarmati
Lawns. The said area would be open for the students to
congregate without any unwarranted interference from
the authorities. As long as the protest or congregation is
peaceful, there will be no occasion for the authorities to
invite the police authorities on the campus.
7. In order to ensure that the above directions are carried
out, the petitioner is permitted to put CCTV cameras in
the front of the Administrative Block, which shall have
the clear view of the parking in front as well as
Administrative Block. CCTVs may also be put on the
main gates of the campus. However, at this stage, the
petitioner would avoid putting CCTV cameras in other
areas which may be considered by the students as an
intrusion on their privacy and free movement as that may
vitiate the environment of the University.
8. Needless to state that in the event, the aforesaid orders
are not complied with, the petitioner would be at liberty
to request the police authorities for assistance to
maintain law and order in the campus. The police
authorities shall act only on the evidence of obstruction
to ingress/ egress to the Administrative Building, being
provided by the Authorities, which may be in the form of
CCTV footage.
9. No further orders are required to be passed in these
proceedings at this stage. The petition and the pending
applications are, accordingly, disposed of with liberty to
the parties to apply in the event any further orders are
required."
2. The facts / sequence of events as alleged by the petitioner University in
support of this petition are with regard to protests made / undertaken by the
respondents on different dates. The relevant averments alleging the violation
/ disobedience of order dated August 9, 2017 are on the basis of the following
events:
A. Protest on 04/01/2018
I. The respondents on January 04, 2018 put out a pamphlet
calling for a mass presence at the Administrative block to
protest against the compulsory attendance rule.
II. The aforementioned call for gathering by the respondents
was made despite the notice dated January 02, 2018 and
January 03, 2018 issued by the Petitioner to the
respondents which stated that JNUSU shall not assemble
en mass at the Administrative Block in terms of order of
this Court dated August 09, 2017.
III. The Chief Proctor went to speak to the students and to
dissuade them from violating this Court‟s order against
holding any kind of protest from within 100 meters of
Administrative Building. However, the respondents
persisted with defying the said Court Order on January 04,
2018. Security Report was submitted on the protest that
had taken place on January 04, 2018 by the Chief Security
Officer.
B. Protest on 10/02/2018
Thereafter, on February 10, 2018, a large number of
students formed a human chain, again a part of protest
movement, and marched through the prohibited area and
went all the way to Vice Chancellor‟s Residence. After
loud sloganeering at the Vice Chancellor‟s Residence,
these students came to the Administrative Block,
vandalized the public property, broke large number of
plant posts, and some of the leaders made offensive
speeches before dispersing.
C. Protest on 11/02/2018
That on February 11, 2018, in response to call by the
respondents, large number of students again assembled at
Administrative Block after 9:00 PM and resorted to loud
sloganeering, and offensive speeches by using battery
operated Public Address System (PAS) marked this protest
in the prohibited area of the campus.
D. Protest on 12/02/2018
That on the February 12, 2018, defying the notice given to
them by the Registrar, the respondents organized a cultural
resistance even at the Administrative Block and again used
the loud Public Address System and made speeches.
E. Protest on 13/02/2018
That on February 13, 2018, in repeat defiance of the
warning notice issued by the Registrar, the respondents led
a large gathering of the students at the Administrative
Block. Through speeches the leaders vowed to continue
the protest against the Admission rules at the prohibited
area, describing it as "Freedom Square" and apparently
seeking to reclaim the space for continuing protests and
other activities. For destroying public property at
Administrative Block, an FIR was also registered.
F. Protest on 15/02/2018
A pamphlet has been issued by the respondents on
February 14, 2018, calling protest gathering "Haziri at
Freedom Square" on February 15, 2018. This call for
protest was issued despite the fact that disciplinary action
was already taken by the University against the
respondents and punishment order dated February 13,
2018, and fine was imposed on the respondents. That on
February 15, 2018 hundreds of the students again gathered
at the Administrative Block and held Rector-I and Rector-
III of the Petitioner University as hostages. The students
despite repeated requests and attempts of Rector-I and
Rector-III to get out of the Administrative Block forcefully
restrained them in the Administrative Block. Even the
large number of the students and the mob‟s demeanor the
security staff of the University was incapable of dispersing
the students and free Rector-I and Rector-III of the
confines of the Administrative Block. That the protest
held on February 15, 2018 was held on a large scale where
the respondents had blocked the ingress and egress of the
University Officials and had restrained Rector-I and
Rector-III under wrongful confinement in the
Administrative Block against their will, for which, a police
complaint was given on February 15, 2018.
It is stated even after Prof. Chintamani Mahapatra, Rector-
I fell ill, the protestors did not allow the doctor to go inside
the Administrative Block and doctor has to ultimately
force his way inside. Also, the ambulance was forcibly
stopped from leaving JNU.
The respondents have by their action of blocking and
protesting at the Administrative Block have once again
brought the University to a standstill. The officials are
unable to carry out their duties amidst the blocking of the
Administrative Block which on occasion turned violent
and aggressive in nature.
3. Respondents have filed their joint affidavit to the contempt petition. In
the affidavit it is their case that the filing of the contempt petition is a gross
abuse of process of law inasmuch as the same is vindictive and vexatious
petition. It is averred that the respondents believe in Rule of Law which is a
part of basic structure of Constitution of India as well as in the right of
peaceful protest as being a fundamental right, guaranteed to all citizens of the
nation. Keeping in mind the larger democratic foundations on which this
Country was built, the University has envisioned as an inclusive University
where dissent in dialogue and peaceful demonstration were recognized as part
of the expression of free speech. The Supreme Court has recognized the right
to peaceful protest as a fundamental right under Part-III of the Constitution of
India. It is stated that the protests organized by the JNU student community
and JNUSU in the past has never been violent. They have never been
irresponsible „protests for protest‟s. The protests have always been informed
by painstaking and thoughtful reflection and sensitivity to people‟s rights,
gender and social justice. The counter-affidavit refers to the Institution where
protests have been held in the past. It also refers to a petition being W.P.(C)
1896/2017 in which the order dated August 9, 2017 was passed. It also refers
to an order dated March 9, 2017 vide which notice was issued to the President
of the JNUSU in order to resolve the issue between the University and the
students by way of dialogue, mediation etc and a direction was issued
restraining the students from protesting within 100 meters of the
Administrative Block. It also refers to order dated March 17, 2017 passed in
the said writ petition.
4. It is the case of the respondents that in the order dated August 9, 2017
this court recognized the right to protest of the students. In this regard a
reference is made to paras 5, 8 and 9 of the said order which have already
been reproduced above. Reference is also made to an amendment sought to
be made to Rule M7 of the AC/EC Regulations on August 21, 2017. The
counter-affidavit also refers to the irregularities in introduction of mandatory
attendance system.
5. On the averments made in the petition with regard to protest held by the
respondents on January 4, 2018, it is their case in Para U of the affidavit that
they had approached the office of the Vice-Chancellor to submit a
memorandum on behalf of the students. The memorandum was signed by
more than 2500 members of the student community. The respondents herein
were met by the Chief Proctor, to whom they have conveyed issues
concerning the attendance as well as informed him that it is imperative to
meet the Vice-Chancellor to inform all the grievances of the students in
relation to the said issue. The Chief Proctor assured them that he would
inform him of the same as well as hand over the memorandum of the student
community. It is their case that the minutes between 8.08 and 8.15 of Video-I
dated January 4, 2018 exhibits that the discussion was not in violation of the
court orders. It is their case that the Video also records from minutes 6.25 to
7.20 respondents informing the Chief Proctor in detail about the issue of
factual misrepresentation seen in the minutes of the 144th Academic Council
meeting. It is their case that only few students were present to give the
memorandum and the Chief Proctor assured that the issue would be
sympathetically considered and that a time for appointment with the Vice-
Chancellor would be granted to them. Pursuant thereto the office bearers met
the Vice-Chancellor on the morning of January 7, 2018 between 9 AM to 9.30
AM. There was no productive dialogue at the meeting on January 7, 2018. It
is their case that from Video-I it is clear that they were not carrying out any
protest / procession on the said date and in fact having discussion with the
Chief Proctor.
6. With regard to January 10, 2018, it is their case that the students
formed a peaceful human chain and in a non-violent expression of solidarity
marched across the campus including the Administrative Block, wherein
members of the student community spoke on different grievances. The same
was done in view of harsh and coercive measures adopted by the University
Administration to implement the irregularities for the attendance regime. It is
their case that the Administrative Block did not have any staff / officers on
February 10, 2018 being Saturday, which is normally a holiday. In any case
all the events of February 10, 2018 organized by the JNUSU including the
human chain were beyond office hours of 9AM to 5PM. As a result there was
no interference with the working of the Administration in JNU.
7. With regard to protest on February 11, 2018, it is their case that the
students in a peaceful expression of solidarity with the larger interest of JNU
community gathered together in the Administrative Block. That February 11,
2018 was a Sunday and therefore is normally observed as a holiday for the
staff and officers of the University Administration. According to the
respondents events of February 11, 2018 took place post office hours and late
into the night after 21:00 hrs.
8. With regard to allegation of protest on February 12, 2018, it is their
case that a circular of the same date was issued by the Registrar, JNU stating
that 145th Academic Council meeting which was initially to be held on
February 23, 2018 is postponed indefinitely. According to the respondents,
repercussion of the decision was that the imposition of compulsory attendance
through the arbitrary orders dated December 22, 2017 and January 10, 2018
would continue to deny the Students Union, University teachers union,
independent members-teachers and even dissenting government nominated
members of the Academic Council, a statutory body their right to put forward
their reservations and representations. In other words, the effect of the
circular was that it surpassed all institutional mandated legal requirements of
the University. They also state that on February 12, 2018, to demonstrate a
feeling of fraternity, consensus and collective spirit, the students expressed
through cultural events, viz, songs and poetry, their shared concern on the
undemocratic acts of the governing administration in JNU. According to
them the cultural act of dissent was in response to the complete disregard by
the Vice-Chancellor and the University Administration of the repeated
requests made by the JNUSU and the teacher association to hold 145 th
Academic Council meeting and also to meet the members of the elected
student body of JNU. They stated that the student community felt concerned
and aggrieved. It is their case that the students were present beyond the office
hours of the administration. Therefore there was no effect on the working of
the administration. The videos submitted by the petitioner University in
relation to the events of February 12, 2018 clearly show that the events were
held at night and post office hours. It is also stated, the video filed by the
petitioner University is grossly inappropriate inasmuch as it is clear the
invasion of the privacy of the individuals gathered outside the block. It is also
stated that none of the students can be seen protesting or even participating in
any cultural event, but they were merely waiting around the Administrative
block. It is stated by the respondents that immediately thereafter on February
13, 2018, the Chief Proctor issued Office Order No. 28/CP/2018 stating that
all four respondents / office bearers had been found to be guilty of leading a
protest / demonstration of 50 persons near the staircase leading to the
Administrative Block on January 4, 2018 and thereby violating the order
passed by this Court on August 9, 2017. In other words, the petitioner has
fined the respondents for the discussion held with the Chief Proctor on
January 4, 2018.
9. On the allegation with regard to the protest of February 13, 2018 it is
averred that the students remained aggrieved in view of the coercive acts on
the part of the petitioner to harass the respondents in the form of imposition of
exorbitant fines. This caused great distress to the respondent office bearers
and larger student community. As did the coercive act of making fellowships
or scholarships contingent on the students following prescribed guidelines
issued on attendance. In view of the same, the student community gathered
peacefully on February 13, 2018 around 5 PM near the Administrative
Building to conduct street plays and lectures. According to them, these events
were also conducted post office hours of the administration and as a result, no
hindrance was caused to the functioning of the administration. In this regard
they rely on photographs annexed as Annexure R-26 and R-27 respectively.
10. With regard to the alleged protest on February 15, 2018, it is their case
that the respondent office bearers approached the administration office to seek
appointment with the Vice-Chancellor. It is stated that neither ingress or
egress of the Administration building was blocked. They denied the fact that
Rector-I or Rector-III were held hostages at any point of time. Rector-I was
requested by the students to be granted an audience with the Vice-Chancellor
to voice their concerns. This request was made on two occasions. On both
occasions, Rector-I was allowed to freely proceed towards and away from the
administration building. They have stated that interaction between the
students and the Rector-I happened well beyond the ingress and egress of the
Administration building. Later that evening upon coming to know that Prof.
Chintamani Mahapatra, Rector-I fell ill, respondent no.1 personally informed
the North Block office via telephone of the same and requested that an
ambulance be immediately sent to the Administrative Block. That the
ambulance and the Doctor‟s entry and exit were not obstructed by the
students. There was no hindrance to the administrative work or to the entry /
exist of the ambulance. According to the respondents from Video No. 3 dated
February 15, 2018, taken between 12 Noon to 1 PM it can be seen that the
students are peacefully standing and chanting together in unity. It is their case
that the Video No.3 shows that stair case was clear and can be used to reach
the ingress and egress of the building. The same were guarded by the security
personnel employed by the University. From Video No.4 shot around
1.30PM, it can be seen Rector-I coming out of the administrative block with
security personnel and some colleagues. In fact, respondent no.1 had called
upon the respondent no.4 Mr. Subhranshu Singh to come forward to speak
and he between 0.15 and 0.25 had stated "please arrange a meeting" and
when further questioned by Rector-I whether this is a forced demand, Mr.
Subhranshu Singh had only replied that "it is a request". It is also alleged
that the person accompanying Rector-I had tried to provoke the students,
however the respondent office bearers made sure that there is peace and
civility maintained in the discussion and asked the students to calm down.
Thereafter, Rector-I turned around and unobstructed goes back to the
administration building. On Video No.5 shot around 2.30 PM on February
15, 2018, it is clear that there is no obstruction to the ingress and egress of the
administrative building. They state that the student counsellor is seen
speaking on the student‟s demands and that members of the administration
and others are making their entry and exit from the building through the path
next to where the counsellor is speaking. Similarly, on Video No. 6 shot at 3
PM, it is seen that the stairs leading to the ingress and egress is free from any
obstruction. The ingress and egress points are secured through security
personnel employed by JNU. On Video No. 7, dated February 15, 2018
which was shot around 4 PM, it is their case that the same shows Rector-I
surrounded by security was requested by the students including respondent
office bearers to arrange a meeting. Respondent no.3 is heard clearly between
minute 0.08 and 0.11 asking to make space for Rector-I to continue walking.
That again between 0.38 and 0.54, it is seen that respondent Office bearers 4
and 2 with a white band are escorting Rector-I while asking fellow students to
not obstruct his path. That Rector-I entered the administration building facing
no restriction at the point of ingress and egress and the students throughout
were requesting Rector to ask the Vice-Chancellor to meet the students and
discuss the arbitrary imposition of mandatory attendance. Respondents relied
upon Video Nos. 3 to 7 dated February 15, 2018 so also some photographs
marked as Annexure-R29. In their joint affidavit, respondents have also
averred that the order dated August 9, 2017, cannot be constructed as an order
in perpetuity. According to them, the same prescribes a self-contained
mechanism to deal with any violation of the same inasmuch as in Paragraph 8
of the order wherein it is stated that the petitioner is at liberty to approach the
police authorities in case of violation of the said order. The order further
obligates the police authorities to act only on the evidence of obstruction to
ingress and egress to the administrative building. The respondents averred
that the petitioner has already availed the said liberty and approached the
police officials on February 12, 2018. No action has been taken by the police
authorities presumably in view of the lack of evidence of any obstruction to
ingress / egress of the administrative block. It is also stated that the order
dated August 9, 2017 of this court was passed in the circumstances as existing
on the date of that order and cannot be construed as a direction in perpetuity
and the same is clear from the direction of 100 meters being passed by the
court "Considering the present situation". Rejoinder to the joint affidavit has
been filed by the University wherein the petitioner has also placed on record
some photographs in respect to their stand that the directions have been
violated.
11. During the course of hearing before the Court, an additional affidavit
came to be filed by the University wherein the petitioner has attached a video
footage along with transcript which was available in the social media to
contend that the contemnor no.1 had detained Rector -I in the administrative
block. In this regard, they rely on the video footage of approximately 9.30
PM, which according to the petitioner shows that Prof. Hari Ram Mishra went
to meet Rector-I and Rector-III detained by the respondents in the
administrative block. Contemnor no.1 did not let him free and eventually
asked Prof. Hari Ram Mishra to come "tomorrow morning during office
hours". According to the petitioner the entire video footage makes it evident
that the contemnors had detained Rector-I, Rector-III and Prof. Mishra was
not allowed to enter the administrative block. It is also stated that Video
No.2 filed along with the petition shows Rector-I had to be carried out by the
ambulance at approximately 1.30 AM in the morning amidst the commotion
and clear attempts being made by the students to stop Rector-I from leaving
the building. They also referred to certain subsequent events that have taken
place outside 100 meters of the administrative block. It is stated that on
March 12, 2018, the respondents along with other students while protesting
against the mandatory attendance rule barged into the office of the Dean of
Students, Prof. Umesh Kadam. After deliberating with the students for some
time regarding the mandatory attendance issue at approximately 3.15 PM, the
Dean of students was forcibly stopped by the respondents and one of the
students grabbed Prof. Kadam from his collar and pushed him on several
occasions during the scuffle. The students were also engaged in fist fight with
security officials. The video footage of the scuffle with the security guards
and Dean of students is Video No.3. It is also stated that after February 15,
2018, respondents were seen carrying out protests across the University
Campus and not in the Sabarmati Lawns which was earmarked by this Court.
According to the petitioner, respondents virtually stopped the classes in
School Languages, Schools of Arts and Aesthetics, School of Life Sciences,
School of International Studies and School of Social Sciences. The
respondents have on certain occasions put lock on the doors of the School
buildings as well as obstructed the teachers and the Professors from taking
their classes. They referred to obstruction of classes done on different dates.
It is also stated that respondent no.1 and Subhranshu Singh demonstrated for
several hours at the residence of Rector-I stated to be within the University
Campus on March 17, 2018. Loud sloganeering and use of unacceptable
language by the protesters psychologically affected the members of the
family. It is their case that the action of the respondents have brought the
entire functioning of the University to a standstill. A short affidavit to the
additional affidavit of the petitioner has been filed by the respondents
wherein, they have stated that additional affidavit filed by the petitioner ought
not to be taken on record as the same has been filed without seeking leave of
the court and the same needs to be ignored. In the short affidavit it is stated
that the petitioner has tried to improve upon its case in the contempt petition
by filing an affidavit at a belated stage. It is stated that the contents of the
affidavit are irrelevant to the present proceedings. Even otherwise, the same
are reiteration of the allegations made in the contempt petition, to which reply
has already been filed. It is also stated that the students have not blocked the
ingress and egress of any person. It is further stated that the affidavit refers to
certain events that took place outside the 100 meters of the Administrative
Block. According to the respondents, any happening outside 100 meters of
the Administrative Block would be beyond the scope of the contempt petition.
Submissions on behalf of the petitioner.
12. Ms. Monika Arora, learned counsel appearing for the petitioner
submitted that the respondents have violated the order dated August 9, 2017
wherein a clear direction was given that no protest of any sort shall be
undertaken by the students within 100 meter radius of the Administrative
Block. She submitted that the facts as narrated in the contempt petition
clearly demonstrates that protests took place within 100 meters of the
Administrative Block inasmuch as (1) pamphlets issued by Contemnor to hold
protest (2) more and more protestors started gathering with passing day from
February 10, 2018 onwards within 100 meters radius of the Administrative
Block (3) emboldened by the restraint shown by the petitioner University, the
respondents confined Pro Vice-Chancellor / Rector-I in the Administrative
Block on February 15, 2018 from 11 AM in the morning till after midnight.
Eventually Rector-I had to be taken out of the Administrative Block by the
Doctors in the ambulance (4) respondents have themselves admitted in the
reply that they have held protests within 100 meters of the Administrative
Block (5) the respondents had cut the wires of the CCTV camera at the
Administrative Block. She would rely upon the following judgments in
support of her contentions:
1. Vijaya Kumar v. State of Kerala, ILR2004(2)Kerala 88;
2. Leo Lukose v. Cochin University of Science and Technology 2016
(1)KHC 147;
3. Ramjas College Versus Delhi University & College Karamchari
Union & Ors. CS(OS) No.1929/2011
13. Three learned Counsels had made the submissions on behalf of the
respondents. Mr. Akhil Sibal, learned Sr. Counsel submitted at the outset,
that the order dated August 9, 2017 is not an order in perpetuity. According
to him, the said order makes it clear that the order was passed in the
background of the circumstances obtaining as on that date and was limited to
the protest and scenario prevailing at that time. He has drawn my attention to
some of the observations made by the court in the said order in support of his
contention. In substance, it is his contention that the scope of operation of the
order was limited to the extent of remedying the situation then existing and
not beyond the same. He would also state that the order dated August 9, 2017
has to be interpreted in a manner consistent with preserving, the fundamental
right to protest. He stated, a balance has been maintained in Para 4 of the
order where the right to protest of students is expressly recognized. He lay
stress on the fact that the significance of protests / demonstrations at the
Administrative Block of the University, is because it is the seat of the
authority. Demonstrations and protests are protected under Article 19(1)(a)
of the Constitution as it is the highest form of free speech. The essence of
free exercise of such right is communication of dissent to the persons to
whom it is intended to be conveyed. Therefore, for a meaningful exercise of
fundamental right to protest, the voice of the protest must not only be heard, it
is also to be seen. He submitted, that interpretation of the order dated August
9, 2017 by the petitioner University is that the direction in the first line of
Para 5 is one in perpetuity to be operative against all students for all
generations to come, namely that there can never be a peaceful protest within
100 meter radius of the Administrative Block. Surely such an interpretation
offends the fundamental right to protest under Part III of the Constitution and
ought not to be sustained and could not have been intended in the said order
and hence the court while exercising the jurisdiction under Article 215 of the
Constitution of India must read in favour of the interpretation of the order
which is in line with constitutional principles under Part-III. If the order is
interpreted to be one to operate in perpetuity, such an interpretation would be
directly in the teeth of fundamental rights enshrined under Part-III of the
Constitution. It is also his submission that the order dated August 9, 2017 is
ambiguous and therefore contempt would not lie. This according to him, is
because in Para 5, it was directed that no protest of any sort shall be carried
out within 100 meters radius of the Administrative Block of JNU. Although
paragraph 8 of the order starts with "8. Needless to state that in the event the
aforesaid orders are not complied with......" it does not provide for the police
authorities to act in respect of all peaceful protests within 100 meters of the
Administrative Block but rather that the "police authorities shall act only on
the evidence of obstruction to ingress / egress to the Administrative
Building...". So according to him in the light of Para 8 of the order an
ambiguity arises as to whether a peaceful protest within 100 meters of the
Administrative Block which does not in any manner obstruct the ingress /
egress to the Administrative Block is also interdicted by the said order.
According to him, in the light of the ambiguity, one possible interpretation of
the order is that it only interdicts such protests even within 100 meters if the
ingress / egress is obstructed, and not otherwise. He also states as it is a well
settled law that when an order allowed two possible interpretations, contempt
shall not lie. In that line, it is stated that if the University is of the view that
any further directions required to deal with current purported cause of action,
remedy is to seek directions in a substantive proceedings. He would rely
upon the following judgments in support of his contentions:
1. (2016) 15 SCC 525 Anita Thakur v. Government of J&K
2. 1962 Supp. (3) SCR 369 Kameshwar Prasad v. State of Bihar
3. 2008 (14) SCC 392 Sushila Raje Holkar v. Anil Kak
4. (2009) 92 SCC 784 Tamilnad Mercantile Bank v. S.C. Shekhar
& Ors.
14. Mr. Gopal Sankarnarayan, learned counsel would submit that on a
demurrer the contempt petition is not maintainable in law and civil contempt
for alleged violation of the direction contained in Para 5 of the order cannot
lie as according to him (1) order dated August 9, 2017 is not in perpetuity, no
contempt lies (2) when alternative remedy is available in law (3) the order is
self-contained (4) Ought not to initiate proceedings on mere technical
contempt. In support of his aforesaid contention, he would submit that the
order dated August 9, 2017 has to be read as a whole in the context of factual
matrix in which the order came to be passed in W.P.(C) 1996/2017.
According to him, the same was filed in view of protest that took place in
February, 2017 against certain UGC notifications. The prayers in the writ
petition were primarily sought against the police authorities seeking removal
of the protesting students from the Administrative Block. Prayer (e) therein
was sought for a restriction that no protests ought to be organized within a
radius of 200 meters from the Administrative Block. The prayer was
supported by the submissions that the existing rule M-7 that prescribed 20
meters had become ineffective. He submitted that if the order is treated as an
order in perpetuity, then the consequences would be disastrous and this court
would become an Administrative Authority monitoring all future
transgression by way of exercise of contempt power. Further it is his
submission that on August 21, 2017, Rule M-7 was amended adopting 100
meters direction contained in Para 5 of the order dated August 9, 2017.
Hence a direction in Para 5 of the order dated August 9, 2017 was subsumed
by the amendment to Rule M7 which has a detailed procedure and
punishment mechanism laid down. This has in fact fully complied with and
each of the respondents have been fined under the mandated Rule M-7.
However, once M-7 has been amended and subsequently the petitioner has
meted out the sanctions therein to the respondents, it would not be open to
them to invoke in perpetuity an order made on specific conditions taking into
consideration the conditions existing at a particular time. He also submitted
that the order dated August 9, 2017 sets out a direction to balance the need for
functioning of the University and the right of the students to the protests by
issuing directions in Para 5 and Para 7. However, in Para 8 therein the order
itself provides for a mechanism to deal with non-compliance of the said
directions. He as Mr. Sibal submitted, also stated, order dated August 9, 2017
is a self-executing order inasmuch as the remedy for non-compliance of the
order is provided at Para 8 itself and the petitioner University ought to have
approached the police authorities who would then act on evidence on
obstruction. According to him, police authorities were not convinced of the
truth of the allegations and as such they did not act. In other words, no
evidence of obstruction was provided to the police authorities as the same did
not exist and as a result no action was taken by the police authorities and no
contempt shall lie against the respondents. The authority which was required
to take action as such has not taken action despite repeated complaints of the
University. Hence, there is no blocking of ingress and egress by the
respondents. He also stated that court shall not initiate contempt proceedings
on a mere technical contempt. On the factual submissions, Mr. Narayanan had
submitted that the same are inaccurate and have been specifically denied by
the respondents in their joint affidavit. He reiterates the same as his
submissions in this regard. He would rely upon the following judgments in
support of his contentions:
1. 2000 (4) SCC 400 R.N. Dey & Ors. V. Bhagyabati Pramanik &
Ors.
2. 1969 2 SCR 649 Re: P.C. Sen
3. 2001 (3) SCC 739 Mritunjoy Das and Anr. V. Sayed Hasibur
Rehman
4. 2014 (14) SCC 446 T.C. Gupta v. Bimal Kumar Datta & Ors.
15. Mr. Govind Manoharan, Advocate who also argued for the respondents
made similar submissions as were made by Mr. Sibal and Mr. Narayanan
inasmuch as when two interpretations of the order are possible, no contempt
shall lie. He has also during his submissions opposed the filing of the
additional affidavit by the petitioner. According to him, such an additional
affidavit cannot be taken on record as the same was filed without the leave of
the court. According to him, Paragraphs 7 to 12 of the additional affidavit
filed by the petitioner are with regard to events / matters outside 100 meters
and therefore even by the petitioner‟s interpretation of the order dated August
9, 2017 it is outside the scope of the present contempt petition. According to
him, it is a settled law, the contempt petition must be complete and composite
insofar as the evidence it relies upon and clear and unambiguous inasmuch the
allegations raised therein are concerned. He stated, in the absence of Rules
framed by this court in relation to Regulations of contempt proceedings,
respondents have placed reliance on Rule 8 of the Rules regulating
proceedings for contempt of the Supreme Court, which according to him,
inter alia reads as "no further affidavit or document shall be filed except with
the leave of the court". In the last it is his submission that respondents have
not produced the footage of the CCTV, which is the best evidence, and as
such, an adverse inference must be drawn, and the contempt proceedings
needs to be dismissed. He relied upon the following judgments in support of
his contention:
1. 2017 SCC Online Del. 9037 Vinod Surha and Anr. v. State (Govt. of
NCT of Delhi) and Anr.;
2. (2010) 3 SCC 705 Sahdeo @ Sahdeo Singh v. State of Uttar Pradesh
and others;
3. (2015) 7 SCC 178 Tomaso Bruno and Another v. State of Uttar
Pradesh.
16. Having heard the learned counsel for the parties, the issue which arises
in the contempt petition is whether the respondents herein have violated the
order of this Court dated August 09, 2017 in W.P.(C) No.1896/2017. The
relevant paragraphs of the order have already been reproduced above. The
allegations of breach of order dated August 09, 2017 are in view of protests /
congregation held on January 04, 2018, February 10, 2018, February 12,
2018, February 13, 2018 and February 15, 2018 at the Administrative
building / block. That apart, it is the case of the petitioner in additional
affidavit that after February 15, 2018, the respondents had carried out protests
across the University campus and not in the Sabarmati lawns as was
earmarked by this Court in its order dated August 09, 2017. It is averred that
the respondents have stopped the classes in the School of Language, School
of Arts and Aesthetics, School of Life Sciences, School of International
Studies etc. It is also averred, on certain occasions, they have put locks on the
doors of the school buildings as well as obstructed the Teachers and
Professors from taking their classes on different dates between March 15,
2018 to March 27, 2018. It is also averred that on March 17, 2018 two
respondents namely Geeta Kumari and Subhranshu Singh demonstrated for
several hours by making loud sloganeering and use of unacceptable language
at the residence of Rector-I situated within the University Campus.
17. The respondents in their affidavit have, in substance taken the
following stand:-
(i) The respondents believe in rule of law, which is part of
basic structure of the Constitution;
(ii) They have a right to peaceful protest, which is a
fundamental right guaranteed to all citizens in view of larger
democratic foundations on which this court was built. The
University has envisioned as an exclusive University where dissent
in dialogue and peaceful demonstration were recognized as part
of the expression of free speech.
(iii) The protests organized by the JNU student community and
JNUSU in the past has never been violent. The same is a
thoughtful reflection and sensitivity to people's right, gender and
social justice.
(iv) In the order dated August 09, 2017, this Court recognized
the right to protest of the students.
(v) On January 04, 2018, they had approached the Office of the
Vice Chancellor to submit a memorandum signed by 2500
Members of the student community.
(vi) They had approached the Chief Proctor with regard to the
issue concerning the attendance.
(vii) The minutes of the video exhibits discussion, which is not in
violation of Court's order.
(viii) The minutes in the video between 6.25 to 7.20 is about the
issue of factual representation seen in the minutes of the 144 th
Academic Council.
(ix) On January 10, 2018, they formed a human chain in non
violent expression of solidarity and marched across the Campus
including the Administrative Block. The same was in view of
measured adopted by the University to implement irregularities in
the attendance regime.
(x) The Administrative Block did not have staff or officers on
February 10, 2018 being a Saturday and all the events were
organized beyond office hours of 9 am to 5 pm.
(xi) On February 11, 2018 being a Sunday for the staff and
officers, the student community gathered together at the
Administrative Block and the events took place post office hours
and late into the night after 21:00 hrs.
(xii) On February 12, 2018, they demonstrated against the
undemocratic acts of the governing administration in JNU. The
cultural act of dissent was in response to complete disregard by
the Vice-Chancellor and the University Administration of the
repeated requests made by the JNUSU and the teacher association
to hold 145th Academic Council meeting and also to meet the
members of the elected student body by JNU. The events were
held at night and post office hours. It is stated that the videos filed
by the petitioner University is grossly inappropriate.
(xiii) On February 13, 2018, an office order was issued against
the respondents herein finding them guilty of protest and
demonstration near the staircase leading to the Administrative
Block on January 04, 2018. The students being aggrieved of the
coercive acts, gathered peacefully at around 5 pm near the
administrative building to conduct street plays and lectures.
Events were conducted post office hours of the administration and
no hindrance was caused to the functioning of the administration.
(xiv) On the protest of February 15, 2018, the respondents
approached the administration office to seek appointment with the
Vice-Chancellor. Neither ingress or egress of the Administration
building was blocked.
(xv) They denied the fact that Rector-I or Rector-III were held
hostages at any point of time.
(xvi) On the happenings of March 15, 2018 between 12 noon to 1
pm, the students were peacefully standing and chanting together in
unity. It is stated that there was no blockage of ingress or egress
of the staff including Rector I, who is seen coming out of
administrative block with security personnel and some colleagues.
(xvii) The order dated August 09, 2017 prescribe a self contained
mechanism to deal with any violation inasmuch as the mechanism
is contained in Paragraph 8 of the order where the petitioner is at
liberty to approach the police authorities in case of violation of
the said order.
(xviii) The petitioner University has already availed the liberty
and approached the police officials on February 12, 2018. No
action has been taken by the police presumably in view of the lack
of evidence of any obstruction to ingress or egress to the
administrative block.
(xix) The order dated August 09, 2017 was passed by this Court
in the circumstances as existing on the date of the order and
cannot be construed as a direction in perpetuity.
(xx) The affidavit filed by the petitioner ought not to be taken on
record as the same was filed without seeking leave of the Court
and the sane needs to be ignored. The petitioner tried to improve
their case; the contents of the same are irrelevant to the present
proceedings. Even otherwise, the same is a reiteration of the
allegations raised in the contempt petition. The affidavit, which
refers to certain events took place outside 100 meters of the
administrative block would be beyond the scope of contempt
petition.
18. Having noted the stand of the parties in their pleadings / affidavits,
insofar as the plea of the learned counsel for the respondents that the
additional affidavit filed by the petitioners should not be taken on record and
considered, is concerned, suffice to state, vide the additional affidavit, the
petitioner has brought on record certain events that have taken place on
February 15, 2018 and thereafter. The issue / allegation of contempt is a very
serious issue where the authority of the Court / Rule of Law is sought to be
undermined. The duty of the person alleging violation of order passed by the
Court, is to bring it to the notice of the Court, the alleged violation. If the
allegations (in the additional affidavit) reveals further disobedience/violation
of order dated August 9, 2017, the same becomes relevant and cannot be
overlooked / ignored on technicalities. In any case, a response has been filed
by the respondents and the relevance of the allegations in the additional
affidavit shall be considered in the following paras vide which, I proceed to
deal with the submissions of the counsel for the parties on the contempt
petition.
19. Insofar as the plea of the respondents that the order dated August 09,
2017 is not an order in perpetuity as the same was passed in the background
of the circumstances prevailing then limited to the protest scenario is
concerned, no doubt this Court in the writ petition in which the said order was
passed was concerned with protest scenario, similar is the position now as can
be seen from the allegations in the contempt petition. The directions of the
Court are not period / time specific. They are primarily to regulate the
protests by the students, that too in future as is clear from the wordings "no
protest of any sort shall be undertaken by the students within 100 meters
radius of the Administrative Block. The University authorities shall earmark
an area where the students can congregate freely to protest".
20. If the submission of the learned counsel for the respondents is to be
accepted then the directions of this Court dated August 09, 2017 shall lose its
relevance / effect and every protest within 100 meters of the Administrative
Building shall be deemed to be a fresh cause of action forcing the University
to approach the Court every time in a fresh petition. That cannot be the intent
of the order, which was passed in a petition filed by the University wherein
the Students Union was a party of which the respondents are the office
bearers. The allegations in the contempt petition are primarily directed
against them of having violated the order. The order shall stand against the
Students / Union, till such time it is set aside or varied, which is not the case
herein. Further, the directions are in conformity with the law on the issue as
laid down by this Court and the Supreme Court wherein the Courts by
recognizing the right of employees (students in this case) to peacefully
ventilate their grievances cannot disrupt the functioning of the business or
damage the property by resorting to demonstration and gheraos etc. (Ref:
Ramjas College v. Delhi University and College Karamchari Union and
Ors. CS(OS)1929/2011).
21. In the case of Vidyasagar Institute of Mental Health and
Neurosciences v. Vidyasagar Hospital Employees 124 (2005) DLT 640 a
Coordinate Bench of this Court, by referring to various judgments of this
Court and the Supreme Court, had by culling out the broad principles, held as
under:
14. From these following principles can be culled out:-
XXXXX XXXXX XXXXX
3.Peaceful demonstration is a fundamental right of the
Unions/employees.
4.It is the legitimate right of the workers to make legitimate
demands and when not met, even go on peaceful but legal
strike, a right so recognized under labor laws. Trade union
has a right to pursue its trade union activities by peaceful
methods. However, in exercise of such a right
unions/employees cannot disrupt the functioning of the
employer or obstruct willing workers from performing their
duties. Further they cannot indulge in the acts of violence,
physical assault, intimidation, threats etc.
5.There is no right of the unions/employees to hold
demonstrations at the residence of the employer. This is
specifically prohibited by the provisions Page 1251 of
the Industrial Disputes Act and amounts to unfair labor
practice on the part of the unions (See Schedule V Entry 6).
Thus holding of any kind of demonstration even physical
demonstration is per se prohibited at the residence of the
employer.
6.Thus while it may be the right of the union to hold peaceful
demonstration, such demonstrations cannot be allowed to
become violent or intimidating in nature. The safety of those
visitors who are visiting the employers premises as well, as
those willing workers, including their smooth ingress and
egress is also to be ensured. This balance is to strike between
the two competing and conflicting interests. The Courts have
devised the methods to ensure it by fixing the distance from the
employers premises within which such demonstration etc
would not be permissible meaning thereby Unions can resort
to these demonstrations only beyond a particular distance. In
this way they are able to hold peaceful demonstration and at
the same time it is ensured that such peaceful demonstration
does not relegate the aforesaid rights of the employer. This is
a message which runs through all the aforesaid judgments
15.The defendants or their employers have no business or cause to
cause inconvenience, harassment or to extend threats to plaintiff his
employees and cause obstruction to these or others who may visit
the plaintiff. Such conduct on the part of the employees of the
defendants for the redressal of their grievance to put pressure
indirectly and disrupt the functioning of the plaintiff is not
permissible nor can be permitted in the present facts and
circumstances.
16. Considering the facts, the defendants cannot be allowed to
disrupt the activities, functioning, ingress and egress of visitors and
the patients and create nuisance by raising slogans near the
hospital where patients need peace and solitude. The right of the
defendants to have a peaceful demonstration can be vouched safely,
if they are allowed to hold peaceful demonstration without making
such nuisance which will disrupt the solitude and peace of the
patients and the willing workers, if they are allowed to do it at a
distance of 200 meters from the boundary of the premises of the
plaintiff.
17. In totality of circumstances, I, therefore, hold that the threat of
strike given by the defendant is illegal and I restrain the defendant
and its members from holding demonstration, dharnas, slogan
shouting and in any way blocking the ingress and egress of the
plaintiff, its office bearers, patients, visitors and other persons
visiting the hospital in any manner, however, they may be entitled
to stage peaceful demonstration and dharnas at a distance of 200
meters from the outer radius of the hospital known as VIMHANS, 1,
Institutional Area, Nehru Nagar, New Delhi. Cost of the suit is also
awarded to the plaintiff and against the defendants."
22. The aforesaid principles have been reiterated by this Court in All India
Central Government Health Scheme Employees' Association (Delhi
Branch) v. Union of India and Ors. W.P.(C) 5471/2008 decided on May 4,
2009. I may state here, that the list of cases on the aforesaid position of law
which still holds the field, is unending. So it follows the law recognizes the
right of an employer, the University in this case, to have an obstruction free
ingress and egress of the staff, students, their parents, visitors etc. In view of
the settled position of law, the respondents / students are required to follow
the law. It is also not the case of the respondents that the order is not binding
on them. Accordingly, I reject the plea as advanced.
23. The plea of the learned counsel for the respondents that the order dated
August 9, 2017 has to be interpreted in a manner consistent with preserving
the fundamental right to protest and balance has been maintained in Para 4 of
the order where right to protest of students is expressly recognized by
referring to Article 19(1)(a) of the Constitution of India is concerned, the
same is without any merit, firstly such a submission is not maintainable in
contempt proceedings. The same should have been advanced at the time of
hearing of the writ petition. Even if advanced during the hearing of the writ
petition, the same would have been rejected in view of the settled position of
law, that a fundamental right as guaranteed under Article 19 (1) does not
enable any citizen to exercise the same, which may encroach upon a similar
right guaranteed to another citizen. In this regard, I would like refer to the
judgment of the Supreme Court in the case of Union of India v. Niranjan
Singh 1969 (1) SCC 502, wherein it inter-alia held that the exercise of
freedom under Article 19(1)(a), (b) and (c) will come to an end as soon as the
right of someone else to hold his property intervenes. The Court held that the
contents of the freedoms guaranteed under Clauses (a), (b) and (c) of Article
19 do not include the right to exercise them in the properties belonging to
others. This judgment of the Supreme Court was referred to by the Kerala
High Court in Kerala Students Union v. Sojan Francis 2004 (2) KLT 378,
wherein the High Court dealing almost with similar facts / issue in Paras 8,
18, 24, 25, 27 & 28 has importantly held as under:
"8. Right to education is a fundamental right guaranteed under
the Constitution of India. Right to uninterrupted education is also
fundamental right guaranteed to every citizen of India lest it may
affect the right to live guaranteed under Article 21 of the
Constitution of India. Article 41 of the Constitution provides that
the State shall within the limits of its economic capacity and
development make effective provision for securing the right to
work and education. Even though this right is not fundamental
right, State by legislative or administrative action provides
facilities for education which stand conformed to equality and
rationality underlined under Article 14 of the Constitution. State
as a body will not be able to provide education to all within the
economic constraints but the object and purpose could be
achieved by various private recognised educational institutions in
the State. Under Article 19(1)(g) the right of citizens to practice
any profession or to carry on any occupation, trade or business
subject to limits as may be imposed by the State in the interest of
public welfare and other grounds enumerated in Clause (6) has
been safeguarded.
XXXXX XXXXX XXXXX
18. The question is whether the organizations like SFI, ABVP, etc.
could widen their organisational activities within the campus, so
as to disrupt the general discipline in the campus. The
Management and the Principals of the various educational
institutions are not against the students advocating any political
philosophy or ideology or discuss the same in the various forums
ear-marked for them by the University laws like College Unions,
Students Council as part of their co-curricular activities, but not
through the students organizations like SFI, ABVP, etc. within the
campus with whom the Management has no legal relationship.
Sojan Francis has however no grievance against the judgment and
has not filed any review petition, but the students organizations
like SFI, ABVP, etc. have come up with a grievance that those
restrictions would affect their organizational activities within the
campus.
XXXXX XXXXX XXXXX
24. The apex court in Railway Board representing the Union of
India v. Niranjan Singh (1969) 1 SCC 502) held that the exercise
of freedom under Article 19(1)(a), (b) and (c) will come to an end
as soon as the right of someone else to hold his property
intervenes. The validity of that limitation is inherent in the
exercise of tests prescribed by Sub-articles (2) and (3) of Article
19. The court held that the contents of the freedoms guaranteed
under Clauses (a), (b) and (c) of Article 19 do not include the right
to exercise them in the properties belonging to others. The Apex
Court in L.I.C of India v. Prof Manubhai D Shah (1992) 3 SCC
637) held that every right has a corresponding duty or obligation
and so has the fundamental right of speech and expression. The
freedom conferred by Article 19(1)(a) is therefore not absolute, it
carries with it certain responsibilities towards fellow citizens and
society at large. A citizen who exercise this right must remain
conscious that the fellow citizen too has a similar right and the
right must be so exercised as not to come in direct conflict with the
right of another citizen. Students organizations like SFI, ABVP,
etc. have therefore no legal right to interfere with the fundamental
rights guaranteed to managements of various educational
institutions in the State under Article 19(1)(g) of the
Constitution.(emphasis supplied)
25. Discipline is the bedrock on which an educational system is
founded. In common parlance, discipline may be a state of order
maintained by training and control a particular system of
regulation or conduct, instructions and exercise, designed to train
to proper conduct or action. Jurisprudentially examined it brings
forth something more. "Obedientiaest legis essentia" obedience is
the guiding force to sustain the law, rule, regulation or custom.
Principal is charged with a duty, to maintain the discipline.
University Laws including Mahatma Gandhi University Statutes
have given considerable powers to the Principals of educational
institutions to enforce discipline in the college. Educational
Institutions can lay down code of conduct and guidelines to be
enforced by the Principal of the educational institution. The apex
court in M.H. Devendrappa v. Karnataka State Small Industries
Development Corporation, (1998) 3 SCC 732), while considering
the scope of Rule 22 of the Service Rules held that a proper
balancing of interests of an individual as a citizen and the right of
the State to frame code of conduct for its employees in the interest
of proper functioning of the State is required. Rules which are
directly linked to and are essential for proper discharge of duties
of a public office would be protected under Article 19(1)(g) of the
Constitution in public interest. Reference may also be made to the
decision in P. Balakoliah v. Union of India (AIR 1958 S.C.232)
and Kameshwar Prasad v. State of Bihar (AIR 1962 S.C. 1166).
XXXXX XXXXX XXXXX
27. Principal, teaching faculty and the Managements while
imparting education is discharging a public duty and are
regulated by rules and regulations of affiliating Universities. Code
of conduct laid down by various educational institutions includes
banning of strike, dharna, gherao etc. in the college campus
violation of which would entail disciplinary action against the
students. State Government and the Universities in the counter
affidavit have stated that because of the strike, dharna,
demonstration, agitation, gherao etc. within the campus by
students organizations like SFI, ABVP, KSU etc. and the students
in general several academic days have been lost and necessary
measures are to be taken to curb those activities. Collective
bargaining, strike, go slow, dharna, agitation, gherao,
absenteeism etc. were alien to academic domain. Unfortunately
now a days those tendencies are on the rise and unless curbed it
will engulf the entire system. The relationship between teachers
and students is solemn and sacred and the relationship is not that
of master and servant or employer and employee. Strike, dharnas,
gherao, go slow and absenteeism are weapons used by the labour
force for establishing their demands under the labour laws and
they are not academic tools to be used against the teaching faculty
or against the management to vindicate the rights of the students.
Such modes of bargaining power is foreign to the relationship
between teachers and students and the students and the
managements. University Statutes do not contemplate such modes
of redressal though the word "strike" finds it statutory expression
under Section 2(q) of I.D. Act. University Statutes enables
constitution of Boards to redress the grievances of the students.
Strikes, gherao, dharna, bandh, etc. within the campus are illegal
and do not have the support by any law and could be prevented
failing which disciplinary action could be taken against the
students.(emphasis supplied)
28. The Apex Court in Ex.Capt. Harish Uppal v. Union of India,
2003 (1) KLT 192 (SC) = (2003) 2 SCC 45, examined the rights of
lawyers to strike work and held that lawyers have no right to go
on strike or give a call for boycott, not even on a token strike and
held them personally liable. Similar view was taken by the apex
court while dealing with bandh in Communist Party of India (M)
v. Bharat Kumar, 1997 (2) KLT 1007 (SC) = (1998) 1 SCC 201)
(supra). So also in Rangarajan v. Government of Tamil Nadu,
2003 (3) KLT 86 (SC), where the Apex Court after following the
earlier decisions held that there is no fundamental right to go on
strike by the government employees. Situation of the students is
worse since they are engaged in academic persuit in an
educational institution governed by rules and regulations. We
have therefore no hesitation to hold that students are bound by the
code of conduct laid down by the educational institutions in which
they are studying and the code of conduct banning strikes, bandhs,
hartals, gheraros etc. in the college campus is binding on them
and could be enforced. Grievances of the students can be
redressed by the grievance forum to be established under the
University Laws and through other legal processes known to law.
24. From the above it is clear, the respondents / Union / students have
fundamental right of peaceful protest / congregation but with certain
responsibilities towards fellow students / staff / visitors etc, so as to, not
impinge upon their right of free access to the Administrative Block. The
order dated August 09, 2017 does not take away the fundamental right of the
students / respondents, to protest. The right is maintained beyond a distance
of 100 meters that too at Sabarmati lawns only, in a peaceful manner.
25. In so far as the plea of the learned Counsel for the respondents that the
order dated August 9, 2017 prescribes a self contained mechanism inasmuch
as in terms of Para 8 of the order, the petitioner is at liberty to approach the
police authorities in violation of the said order and the Authorities having
approached the police on February 12, 2018 and no action has been taken by
the police presumably in view of the lack of evidence of any obstruction is
concerned, the order dated August 09, 2017, encompasses the following
directions:-
(1) No protest shall be undertaken by the students within 100 mtrs radius
of the Administrative Block;
(2) The congregation shall be at Sabarmati Lawns and shall be peaceful.
(3) In the eventuality, the aforesaid orders are not complied with, the
petitioner would be at liberty to request the police for assistance to maintain
law and order, who shall act only on evidence of obstruction to ingress /
egress to the Administrative Building.
26. So it follows any protest/congregation by the Union/students within a
limit of 100 meters of the administrative building, even without obstruction to
ingress and egress shall be a violation of order of the Court. Having said so,
the allegations in the contempt petition are that the respondents apart from
congregating/protesting within 100 meters of the administrative building, they
were also obstructing the ingress and egress to the Administrative building.
There is no denial to the fact that the students had congregated at the
administrative building. In fact, in their affidavit, the respondents have stated
(with regard to February 10, 2018) "marched across the Campus including
the Administrative Block". "The Administrative Block did not have staff or
officers on February 10, 2018 being a Saturday and all the events were
organized beyond office hours of 9 am to 5 pm." "On February 11, 2018
being a Sunday for the staff and officers, the student community gathered
together at the Administrative Block and the events took place post office
hours and late into the night after 21:00 hrs." "The events were held at night
and post office hours." "The students being aggrieved of the coercive acts,
gathered peacefully at around 5 pm near the administrative building to
conduct street plays and lectures. Events were conducted post office hours of
the administration and no hindrance was caused to the functioning of the
administration." "On the happenings of March 15, 2018 between 12 noon to
1 pm, the students were peacefully standing and chanting together in unity."
The statements are admissions of the respondents that they have held protests
/ congregated at the Administrative building. The fact that the respondents /
students had protested / congregated within 100 mtrs of the Administrative
Block and not at Sabarmati Lawns shall itself constitute a violation of order
dated August 09, 2017.
27. The defence of the respondents that the protests / congregation have not
resulted in any obstruction to ingress and egress is irrelevant. Further, in para
8, the discretion bestowed on the University, in the eventuality of obstruction
to ingress / egress to call the police, does not obliterate the directions in paras
5 and 6 that any form of protest / congregation has to be beyond 100 mtrs at
Sabarmati Lawns only. I may state here, forming a human chain is a form of
protest and is in violation of directions in paras 5 and 6 of the order dated
August 09, 2017. Similar shall be the position if the respondents / students
disrupt the classes and also restrain the Officers / Staff from performing their
duties.
28. Insofar as the plea of the respondents that as penalties of `10,000/- each
were imposed on the four respondents, the same shall not entail action under
the Contempt of Courts Act is concerned, the same is also without any merit.
The imposition of penalty of `10,000/- on the students was for their conduct
on January 04, 2018, which was violative of the Rules, which is surely an
independent action not connected with an action against the respondents for
violating the order of the Court. Further, the basis for initiating contempt
petition is not with regard to the conduct of the respondents of January 04,
2018 only but also on other days. Even on that ground, the contempt petition
by the University shall be maintainable.
29. The submission of learned counsel for the respondents that when two
interpretations of an order are possible, the contempt petition would not lie is
concerned, the same is also without any merit. The directions are clear and
explicit without ambiguity and required to be followed.
30. Insofar as the judgments referred to by the learned counsel for the
respondents are concerned, the same are on the following proposition:-
Judgments Proposition
(i) Anita Thakur (supra); Holding of peaceful demonstration in
(ii) Kameshwar Prasad (supra) order to air their grievances and to
see that their voice is heard in the
relevant quarters is the right of the
people, which can be traced to the
fundamental freedom that is
guaranteed under Articles 19(1)(a),
19(1)(b) and 19(1)(c) i.e freedom of
speech, right to assemble and right to
take out peaceful march.
Sushila Raje Holkar That a contemnor must be punished
(supra) only when a clear case of
contumacious conduct has been made
out;
Tamilnad Mercantile Bank Where two views are possible, a
(supra) contempt would not lie
Vinod Surha (supra) Contempt proceedings cannot be used
as a vehicle for roving enquiry to
ascertain whether there has or has
not been compliance with the
directions issued by the Court. It is
therefore, absolutely necessary that
every petition seeking initiation of
contempt proceedings not only alleges
in clear and unambiguous terms
contumacious, disobedience with
directions issued by the Court but
also contains adequate and sufficient
material to support the said
allegation;
Sahdeo Alias Sahdeo Singh Non compliance of Courts order by
(supra) mistake, inadvertence or by
misunderstanding of meaning and
purport of order unless it is
intentional, no charge of contempt
can be brought home in such cases
Tomaso Bruno and anr. Failure to produce best evidence i.e
(supra) CCTV footage, creates serious doubt
about the petitioner's case and on
that ground the contempt petition
needs to be dismissed
R.N.Dey (supra) That the weapon of Contempt is not to
be used in abundance or misused.
Normally it cannot be used for
execution of the decree or
implementation of an order for which
alternative remedy in law in provided
for
In Re: P.C. Sen That Court not to initiate proceedings
on a mere technical Contempt
Mritunjoy Das and Anr The standard of proof for civil
(supra) Contempt is beyond reasonable
and doubt.
T.C. Gupta (supra)
31. The aforesaid judgments have no applicability in the facts as pleaded;
in view of my conclusion above. This being a contempt petition, the scope is
to see and determine whether there is violation of the order passed by this
Court and nothing more.
32. My above discussion shows, the respondents have in fact, reargued the
writ petition by contending that they have a right to protest that too at the
administrative block, de hors the direction already given. In other words, the
attempt has been to justify their conduct. During the arguments, the
respondents have not expressed any regret / remorse for violating the orders.
It is not a case of non-compliance of order by mistake, inadvertence or by
misunderstanding of meaning and purport of the order. This I say so, the
respondents herein are pursuing post graduate studies. They are educated
persons, surely knowing the purport / intent of the order passed by this Court
on August 09, 2017, which is clear and explicit. The interpretation sought to
be given to the order by the learned counsel for the respondents is only an
attempt to wriggle out of their contemptuous acts. So it must be held, on the
basis of the photographs and the admissions made by the respondents, that
they did congregate / held protests in the administrative block, which was in
willful violation of the order dated August 09, 2017. The Supreme Court in
the case reported as (2006) 11 SCC 114 Rama Narang v. Ramesh Narang
and another, has held that in order to maintain sanctity of the orders of the
court, it has become imperative that those who are guilty of deliberately
disregarding the orders of the Court in a clandestine manner should be
appropriately punished. It was further held that the Majesty of the Court and
the Rule of Law can never be maintained unless this Court ensures meticulous
compliance of its orders. Similarly, a Division Bench of this Court in Mohan
Nair Vs. Rajiv Gupta 220 (2015) DLT 332 held that to say that the orders of
the Courts are unimplementable and unenforceable has the tendency of
making the law and the Court, a laughing stock and it is the duty of every
Court to prevent its machinery from being made a sham, thereby running
down the Rule of Law and rendering itself an object of ridicule.
33. The Supreme Court in Sukhdev Singh v. Hon'ble C.J.S. Teja Singh &
Ors. AIR (1954) SCR 454 while recognizing that the power of the High Court
to institute proceedings for contempt and punish the contemnor when found
necessary is a special jurisdiction which is inherent in all Courts of Record,
the Bench opined that "the maximum punishment is now limited to six
month‟s simple imprisonment or a fine of ` 2,000/- or both" because of the
provision of Contempt of Courts Act.
34. Accordingly, taking into consideration that the respondents are students
who are pursuing higher studies, and are on the threshold of their careers, the
interest of justice would be served if a fine of ` 2,000/- is imposed on each of
the respondents. It is ordered accordingly. The fine shall be deposited before
the Registrar General of this Court within two weeks from today. Contempt
petition is disposed of.
V. KAMESWAR RAO, J
JULY 03, 2018/jg/ak
