Kerala HC Order Banning Student Protests: Dangerous Implications For Democracy

AN order passed by Chief Justice Navaniti Prasad Singh and Justice Raja Vijayaraghavan of the Kerala HC in a case concerning MES College, Ponnani declares that "Dharna, hunger strikes and other practices like Sathyagrah have no place in a constitutional democracy" and recommends expulsion or rustication for any student participating in such protests.

Such an order has very serious implications not only for student movements and campuses but for India’s democracy in general.

The entire tone and tenor of the order is that of moral chastisement and castigation rather than an assessment of constitutionality. The order begins by declaring, about the student activist and member of SFI, “The first thing which crosses our mind is whether he goes to the college to indulge in politics or to study, a question which he and his parents must consider, for we hold that in academic institutions, politics or political activities cannot be permitted.”

Should the honourable judges really give vent to the “first thing that crosses their minds” in a matter as a crucial as the right to protest? Of late, the Kerala HC has been coming out with one appalling order after another, displaying a censorious gaze towards the freedoms and civil liberties of the young that might be excusable in “Uncles” but ill suits the judiciary. In the Hadiya case, the Kerala HC judges chose to empathize with a father’s outrage at an adult daughter’s disobedient decision to convert her faith and choose a husband, and handed the 24-year-old daughter into her father’s custody. And now, the Kerala HC is outlawing protests by students on campuses.

What is the judgement’s reasoning, and why should it concern us, irrespective of whether or not we are students or political activists? The judgement quotes Dr Ambedkar’s words at the time of adopting of the Constitution suggesting that civil disobedience, non-cooperation and satyagraha were alright during colonial rule when India lacked independence and a Constitution – but that such means would amount to “the grammar of anarchy” once India had become a Constitutional democracy. Citing these words, the HC verdict declares, “If they have a legitimate grievance, avenues for ventilating them are legally available. There is students council, academic council and there are courts including this Court where appropriate grievances can be raised. Dharnas have no place which would only vitiate the academic atmosphere.” This is a shocking interpretation of the fundamental rights recognized by the Article 19 of the Constitution.

Article 19 recognises the freedom of speech and expression, to peaceful assembly; to form associations and unions as a fundamental right – it has generally been held that restrictions on this right cannot be arbitrary. Notwithstanding Dr Ambedkar’s words about satyagraha and other protests, peaceful form of protest have in fact been widely recognized and upheld by numerous Court judgements as a fundamental right of all persons. How can students as a class be deprived arbitrarily of such rights?

In the past 70 years, people’s movements - in dharnas, processions, protests, numerous acts of civil disobedience - have done as much and more to enrich and protect the spirit of the Constitution than the so-called “legitimate avenues” of elected representation, assemblies and parliament. The “legitimate avenues” – parliamentary avenues – have more often than not been hijacked by the rich and powerful. Dhirubhai Ambani is reported to have boasted, “I don’t break laws; I make laws”: that is, he did not need to break laws, he could simply get assemblies and parliament to enact laws to suit his interests. Parliaments have been notoriously unwilling to risk offending mob morality to uphold and defend what Ambedkar called ‘Constitutional morality’ – i.e the rights of minorities, however miniscule and unpopular. In this backdrop, it is trade union movements, feminist movements, student movements, environmental movements, Dalit movements, movements for civil liberties and to defend secularism – that have, by defending the rights of the weak and powerless and speaking truth to power, been the life and soul of Indian democracy in action and in spirit.

Students in particular have been at the forefront of every democratic churning that India has experienced: the anti-Emergency protests famously began with student strikes in Gujarat against hikes in hostel mess fees; prominent leaders of most Indian political parties today cut their teeth in the movements against the Emergency. How, then, can Courts be allowed to decree that politics must be outlawed from campuses; that campuses must be ‘Zones of Exception’ for democratic rights and the right to protest? “Have your parents sent you to college to study or to do politics” is the question every student activist has faced from irate administrations. Why is it assumed that studying and politics cannot go together? Isn’t ‘study’ in some senses sterile if it is artificially divorced from politics? ‘When politics decides your future, you must decide your politics’ is a popular slogan coined by student movements in answer to those who delegitimize student politics. If politics decides to hike fees and make college/University education unaffordable for the poor, should students not protest? When the University administration blames women students for sexual harassment, is it not practicing patriarchal politics? Why should women students not have the right to agitate against victim blaming – as they did at BHU last month? When University rules discriminate against the freedom of speech and expression (punishing students for printing leaflets, forming unions or holding meetings) or discriminate on the grounds of gender or caste, should students not have a right to agitate to demand a change of rules?

In the past, too, it was a Kerala HC verdict that led to the Supreme Court appointing the Lyngdoh Committee to lay down norms for students’ union elections. In so doing, the SC agreed that students had a right to form unions and exercise Article 19 – but asked the LC to regulate the ways in which Article 19 might be exercised on campuses. The results of the LC regulations are questionable. The LC rules have not been used – as the LC report had mandated – to ensure regular student union elections in central university campuses like BHU (Benaras Hindu University) or Jamia Millia Islamia; in campuses like DU, LC rules have been unable to curb the massive political expenditure by powerful patrons of student leaders. But the LC rules that prevent students who have faced any punishment by Administrations or the state from contesting elections have created a situation where on a campus like JNU, the Administration can easily prevent a committed and experienced activist from contesting Union elections by punishing them on some pretext or another! The Delhi HC has recently set aside punishments of 15 JNU students on the grounds that the Administration’s procedures of enquiry and appeal had violated principles of natural justice. While that is welcome, the fact is that thanks to these unjust punishments, many of these students were prevented from contesting JNUSU polls thanks to the Lyngdoh regulations. The relief received from the Court now cannot undo that injustice. In effect, a politically biased Administration was able to use the Lyngdoh regulations to ensure that some of the University’s best activists were unable to contest elections.

What about concerns about criminalization of student politics, that have so often been cited to justify bans on ‘political interference’ on campuses? That is indeed a serious problem – but so is criminalization of politics in general. It would be outrageous and unconstitutional for elections and politics in India to be suspended to curb criminalization of politics – why, then, is acceptable to curb student politics on this pretext? College and University students are adult citizens – and must enjoy the rights that every citizen has, to organize and agitate peacefully. Universities and colleges do have a custodial responsibility – but that responsibility is to protect students from violence and discrimination, not to take away their fundamental rights. Administrations are justified in acting to prevent and punish ragging or sexual harassment or other forms of violence; but they cannot use concerns about ragging or women’s safety to insulate themselves from students’ peaceful protests challenging their policies or decisions, or to justify gender discrimination against women students.

Moreover, as Dr Parnal Chirmuley of JNU observes, it is “progressive student politics across campuses” that has “gradually emerged as a counter to the criminalisation of student politics that was the legacy of some mainstream parties. Student activism has fought for democratic admission policies, for student rights on campuses, for the equitable right to education, and have consistently thwarted successive governments’ attempts at the blanket privatisation of higher education in the country. Brave student activists have built among students a deeper understanding of progressive people’s movements around issues of caste, gender, class, land, and minority rights. They have revitalised the idea of the university as a space for learning about commitment to one’s society, making education the first step towards creating a better society for all, as against protecting the privilege of a small elite.” (‘Who’s afraid of campus politics?’, March 18, 2017)

Finally, what to make of the claim made by the Court that student protest encroach on the “right of the civilized students to receive education”? Actually, student politics and democratic, regular Union elections are the best way to ensure that student organizations do not misuse power to indulge in violence. The power of ordinary students to organize, form associations, and shape political narratives, is the best guarantee against the money- and muscle-power wielded by the student outfits of powerful ruling parties.

In 2009, Justices Markandeya Katju and AK Ganguly of the Supreme Court of India referred the Lyngdoh Committee recommendations to a five-judge Constitutional Bench of the SC, expressing “grave reservations about the manner of implementation” of the recommendations. Pending before the Constitution Bench are the questions: whether the judiciary can legislate without encroaching on the powers of the executive; and “whether Article 19 (1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee report without authority of law.” The Constitutional Bench is yet to deliberate on this pending issue. But in my opinion, what the Supreme Court additionally – and urgently – needs to consider is whether a judicial fiat can curb the fundamental rights of citizen of India or any other person merely because the citizen/person is a student of a college or University in India? 

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