University of Kerala vs Council, Principals' Colleges, Kerala and Ors.

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

I.A. NOS. 22, 23 & 24 IN CIVIL APPEAL NO(s). 887 OF 2009

UNIVERSITY OF KERALA Appellant (s)

VERSUS

COUNCIL,PRINCIPALS',COLLEGES,KERALA & ORS. Respondent(s)

ORDER

Heard Mr. Gopal Subramanium, learned amicus

curiae, Mr. Sanjay Parikh, learned counsel appearing

for the Jawaharlal Nehru University Students' Union,

Mr. A.C. Dhanda, learned counsel for Jawaharlal Nehru

University (JNU) authorities and also Mr. M.L. Lahoty,

learned counsel appearing for the Youth for Equality

Students.

The instant matter comes up before us by way of

Interlocutory Applications No. 22-23 and 24 filed by

the JNU Students' Union and the learned Amicus Curiae

respectively.

It appears that by way of judicial intervention,

this Court wanted to introduce fairness and

transparency in the holding of elections to the

Students' Unions in various Universities across the

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country. The main thrust behind such intervention is

because of the fact that the general election scenario

in this country is murky and suffering from mob-muscle

methods which have deleterious effects on various

elections including conduct of free and fair elections

to the students' unions. Elections to students' bodies

has been badly affected throughout the country. It

goes without saying that the students are the future

representatives in various democratic bodies like State

Legislative Assemblies as well as Parliament in our

democratic set up. This Court, therefore, thought that

a value based mechanism should be inculcated at a very

early stage in the elections of students' bodies so

that the same ultimately transforms and improves the

quality of general elections to strengthen the

democratic governance of the country. This Court,

therefore, on the basis of important public law

principles, intervened in the judgment rendered by

Kerala High Court where the main controversy in a

students' body election was whether the form of

elections should be Parliamentary or Presidential.

By an order dated 12th December, 2005, a Division

Bench of this Court took note of certain valid

suggestions given by Mr. Gopal Subramanium, the then

Additional Solicitor General (presently appearing as

amicus curiae before us) in order to ensure free and

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fair elections to the students' bodies across the

country. The learned amicus suggested that there are

three areas of serious concern which need immediate

attention of this Court. They are:

(a) Criminalization in Students' Union elections.

(b) Financial transparency and limits of expenditure.

(c) Criterion for being eligible to contest elections.

This Court, after hearing Mr. Gopal Subramanium,

the then Additional Solicitor General and the counsel

for Principals of the Colleges and the students'

bodies, found that the suggestions given by learned

amicus are prima facie worth considering and therefore,

appointed a Committee consisting of the following

persons:

1. Mr. J.S. Lyngdoh, Retd. Chief Election Commissioner

2. Dr. Zoya Hasan

3. Professor Pratap Bhanu Mehta

4. Dr. Dayanand Dongaonkar (Secretary General of the Association of Indian Universities)

The said order dated 12th December, 2005 also

directs nomination of two other members by the Ministry

of Human Resources and Development and one of the

members should preferably be a Chartered Accountant to

consider the financial angles of such elections.

Pursuant to the aforesaid order of this Court, a

Committee was constituted by the Central Government and

the said Committee ultimately consisted of the

following persons:

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Shri J.M. Lyngdoh Chairman Chairman Former Chief Election Commissioner

Prof. Zoya Hasan Member Member Professor Centre for Political Studies

Dr. Pratap Bhanu Mehta Member Member President & Chief Executive Centre for Policy Research New Delhi

Prof. Ved Prakash Member Member Director National Institute of Educational Planning and Administration (NIEPA) New Delhi

Shri I.P. Singh Member Member Retired Deputy Comptroller and Auditor General

Prof. Dayanand Dongaonkar Convener Convener Secretary General Association of Indian Universities New Delhi

The aforesaid Committee upon a very seirous

exercise gave detailed recommendations. This Court vide

its order dated 22nd September, 2006 accepted those

recommendations and directed that those recommendations

should thereafter be followed scrupulously in holding

elections to the students' bodies in all Universities

across the country.

We are happy to note that after those

recommendations are given, the standard of fairness in

the matter of holding elections to students' bodies

across the country has substantially improved.

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Afterwards, notice of this Court was drawn to

certain complaints to the effect that elections were

taking place not in accordance with those

recommendations. This Court vide an order dated 24th

October, 2008, issued notice of contempt to the Vice

Chancellor and the Registrar of the Jawaharlal Nehru

University and also stayed the JNU elections which were

scheduled to be held on 3rd November, 2008 as they are

not being held in accordance with the Lyngdoh Committee

recommendations which were accepted by this Court.

Pursuant to such notice of contempt, the

University authorities appeared before this Court and

made it clear that the elections in JNU are held under

the Jawaharlal Nehru University Act and the student

bodies are holding such elections as autonomous bodies

and the JNU authorities do not have much control in

those matters.

Since the elections to the student bodies of JNU

were stayed pursuant to the aforesaid order of this

Court dated 24th October, 2008, interlocutory

applications were filed by the student bodies seeking

leave of this Court for the holding of elections in

accordance with the Lyngdoh Committee recommendations

and if necessary by seeking certain suitable

modifications to the existing norms so that elections

are held in a manner which is substantially in tune

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with the recommendations of the Lyngdoh Committee.

It may also be noticed that prayers were also made

for vacation of the order of the stay issued by this

Court on 24th October, 2008.

We have heard learned counsel for the parties and

the amicus in connection with the aforesaid prayers and

after hearing parties, we pass the following order.

This Court is confronted with two competing claims

of public interest: On the one hand, the Court has to

ensure purity in the election process and on the other

hand, is the right to exercise the vitally important

liberty of the students to choose their representative

through election. This Court has held that this right

to choose one's representative through an election is

virtually an extension of one's fundamental right to

freedom of expression (See Union of India Vs.

Association of Democratic Reforms & Anr. (2002) 5 SCC

294). Thus, it partakes of the character of a

fundamental right.

We thought that such a right cannot be possibly

stifled by a Court order. Thus, we are trying to strike

a balance and in doing so, we have followed the concept

of reasonable restrictions, which is a part of our

Constitutional doctrine.

We have been told by the learned counsel appearing

for the University that JNU is primarily a research

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oriented University. There are some students in the

language courses but JNU is basically a post-graduate

University. JNU being primarily a research oriented

university, it has certain unique and distinct features

of its own.

We have heard learned Amicus Curiae on the areas

of relaxation which have been sought by the students'

union and also considered the suggestions given by

learned amicus.

One of the issues is for the time period of

holding of elections. After considering the suggestions

given by the learned amicus and learned counsel for the

parties, we do not think that any variation in Lyngdoh

Committee recommendation in that aspect is called for.

The next suggestion is coming up on the question

of age restriction of candidates. After considering the

suggestions given by learned amicus and also after

hearing learned counsel appearing for the students'

bodies, we accept the suggestion given by learned

amicus that for research students, the maximum age

limit which can be fixed for them to legitimately

contest the election could be enhanced to 30 years.

Insofar as attendance criteria is concerned, we

have been told by the learned counsel appearing for the

University authorities that in JNU, for research

students no attendance is taken. Therefore, the

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stipulation given in the Lyngdoh Committee

recommendation about 75% attendance is not applicable

insofar as election by research students of JNU is

concerned.

So far as the repeat criteria is concerned, we do

not think that any change is required. We reiterate

that the elections should be held in accordance with

the Lyngdoh Committee recommendations.

Similarly, in cases of criminal record of

candidates, the recommendation of Lyngdoh Committee

should be followed.

Insofar as the use of printed material and

pamphlets is concerned, we accept the suggestions given

by the learned amicus that photostat copies of

pamphlets and manifestos may be permitted within the

limit of Rs. 5000/- as recommended by the Lyngdoh

Committee.

Insofar as grievance mechanism is concerned, we

think no change is called for.

Since we are of the view that the recommendations

of the Lyngdoh Committee are very salutary in nature,

we have not allowed any major changes except those

which are absolutely necessary.

We hope that elections may be satisfactorily held

in view of the relaxations permitted by this order.

With the above directions, the interlocutory

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applications stand disposed of.

Before parting with the matter, this Court records

its profound appreciation for the very competent

assistance rendered by the learned amicus in resolving

these issues, which are of vital importance.

............................J. (ASOK KUMAR GANGULY)

............................J. (JAGDISH SINGH KHEHAR)

NEW DELHI, 8-12-2011