The author of the present critique, is a practising Advocate before various Courts and Tribunals in Delhi NCR. The author respectfully bows down to the decision/ judgment of the Hon’ble Kerala High Court, which is subject matter of the present critique. However, the said judgment suffers from a few legal infirmities, as will be discussed hereunder, in the interest of a healthy legal discussion.

 

“Legal Injustice is not uncommon in the courts of justice, and miscarriage of justice has retarded the dispensation of true justice.”

~Dr. T. P Chia

The present article is a critique of the judgment dated 15th June, 2016 delivered by the Hon’ble Kerala High Court in G. S. Ammu v. University of Kerala, being WP (C) No. 17243 of 2016. The facts leading to the filing of the present writ petition were that a girl who was a student of a College in Kerala had eloped with a boy, studying in the same class. The couple was staying in a lodge at Trivandrum. A missing complaint was filed and the couple were found and apprehended and produced before the Magistrate. The Magistrate however, released the students/ couple and handed them to their individual parents.

Ironically, the real ordeal for the students started after they were released by the Magistrate. After their release, the students went back to their college. The management of the students’ college initiated disciplinary action against them, after which the students were ousted/ rusticated from the college, on the ground that the students were guilty of misconduct and that an example had to be set. Even though the students apologized for their actions, the management took the sternest possible step to rusticate the students. The University to which the college was affiliated, maintained a stoic distance and refused to intervene. The students were driven to the wall and had no option left to salvage and resume their academic journey. In such a scenario, the petitioner approached the Kerala High Court by way of a writ petition, seeking protection from being ousted from the college.

It would not be out of place to mention here that the Petitioner had an excellent academic record and was in her fourth semester. The course which the Petitioner was pursuing comprised six semesters. The aforementioned fact was brought before the Hon’ble High Court.

The Hon’ble Kerala High Court in the said judgment, inter alia, held that the Disciplinary Committee’s finding that the students were guilty of “misconduct” was correct. The Hon’ble Kerala High Court further held that when the students, like adults, had taken a “drastic step” of eloping and living together without contracting a marriage, they should be ready to face the “drastic consequences”. It was further held that the management’s concern of “setting an example” to the other students and maintenance of discipline cannot be easily brushed aside. Hence, the Hon’ble Kerala High Court dismissed the writ petition, while holding that “impulsive act of the petitioner has resulted in the drastic consequences.” Relevant paragraphs of the judgment of the Hon’ble Kerala High Court are reproduced for ease of reference:

“8.     This is not a mere case of falling in love; but two students taking the drastic step of eloping and living together without even contracting a marriage. As consenting adults they could definitely act according to their volition. But, here they could not have even legally entered into a marriage. When taking such drastic step for the sake of love, as adults, they should also be ready to face the consequences. The Management's concern of setting an example to the other students and ensuring maintenance of discipline in the educational institution cannot be easily brushed aside.W.P (c) No. 17243 of 2016 5

9.       The impulsive act of the petitioner has resulted in the drastic consequences. Having gone through the report of the five member Committee as also the order of the Principal and also noticing the fact that the petitioner along with a classmate had eloped and had been residing elsewhere from where they were apprehended by the Police, this Court is not inclined to exercise discretion in favour of the petitioner to interfere with the orders passed by the Management.

10.     The writ petition will stand dismissed. No order as to costs.”

(Emphasis Supplied)

It is most respectfully submitted that a bare perusal of the aforementioned paragraphs gives an impression that the judgment is based on individual predilection of the Hon’ble Judge, instead of being based on objective parameters and legal principles. This approach, it is respectfully submitted, is not only incorrect, but also unexpected and impermissible, more so in light of the fact that the consequences in the present matter are penal in nature. The aforesaid approach has been frowned upon by the Hon’ble Supreme Court in Bachan Singh v. State of Punjab[1] wherein the Hon’ble Supreme Court observed:

“175. … As Judges, we have to resist the temptation to substitute our own value choices for the will of the people. Since substituted judicial ‘made-to-order’ standards, howsoever painstakingly made, do not bear the people's imprimatur, they may not have the same authenticity and efficacy as the silent zones, and green belts designedly marked out and left open by Parliament in its legislative planning for fair play of judicial discretion to take care of the variable, unpredictable circumstances of the individual cases, relevant to individualised sentencing. When Judges, acting individually or collectively, in their benign anxiety to do what they think is morally good for the people, take upon themselves the responsibility of setting down social norms of conduct, there is every danger, despite their effort to make a rational guess of the notions of right and wrong prevailing in the community at large and despite their intention to abide by the dictates of mere reason, that they might write their own peculiar view or personal predilection into the law, sincerely mistaking that changeling for what they perceive to be the community ethic. The perception of ‘community’ standards or ethics may vary from Judge to Judge.”

(Emphasis Supplied)

In another case, being Gurbaksh Singh Sibbia v. State of Punjab[2], the Constitution Bench observed thus:

“15.   Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions.”

In Hindustan Times Ltd. v. Union of India[3] the Hon’ble Supreme Court held:

“8.      In an article On Writing Judgments, Justice Michael Kirby of Australia [ [(1990) (Vol. 64. Australian Law Journal, p. 691)]] has approached the problem from the point of view of the litigant, the legal profession, the subordinate courts/tribunals, the brother Judges and the Judges' own conscience. To the litigant, the duty of the Judge is to uphold his own integrity and let the losing party know why he lost the case. The legal profession is entitled to have it demonstrated that the Judge had the correct principles in mind, had properly applied them and is entitled to examine the body of the judgment for the learning and precedent that they provide and for the reassurance of the quality of the judiciary which is still the centre-piece of our administration of justice. …”

(Emphasis Supplied)

In Oma alias Omprakash and Anr v. State of Tamil Nadu[4], the Hon’ble Supreme Court, while discussing the aforesaid paragraph from Hindustan Times Ltd. judgment, observed:

“53.    In Hindustan Times Ltd. v. Union of India [(1998) 2 SCC 242 : 1998 SCC (L&S) 481] (SCC p. 248, para 8) a two-Judge Bench of this Court referred to an article “On Writing Judgments”, by Justice Michael Kirby of Australia [ “On the Writing of Judgments” (1990) 64 ALJ 691 (Aust)] wherein it has been highlighted, apart from any facet that the legal profession is entitled to have, it demonstrated that the Judge has the correct principles in mind, has properly applied them and is entitled to examine the body of the judgment for the learning and precedent that they provide and further reassurance of the quality of the judiciary which is the centrepiece of our administration of justice. Thus, the fundamental requirement is that a Judge presiding over a criminal trial has the sacrosanct duty to demonstrate that he applies the correct principles of law to the facts regard being had to the precedents in the field. A Judge trying a criminal case has a sacred duty to appreciate the evidence in a seemly manner and is not to be governed by any kind of individual philosophy, abstract concepts, conjectures and surmises and should never be influenced by some observations or speeches made in certain quarters of the society but not in binding judicial precedents. He should entirely ostracise prejudice and bias. The bias need not be personal but may be an opinionated bias.

“54.    It is the Judge's obligation to understand and appreciate the case of the prosecution and the plea of the defence in proper perspective, address to the points involved for determination and consider the material and evidence brought on record to substantiate the allegations and record his reasons with sobriety sans emotion. He must constantly keep in mind that every citizen of this country is entitled to a fair trial and further if a conviction is recorded it has to be based on the guided parameters of law. And, more importantly, when sentence is imposed, it has to be based on sound legal principles, regard being had to the command of the statute, nature of the offence, collective cry and anguish of the victims and, above all, the “collective conscience” and doctrine of proportionality. Neither his vanity nor his pride of learning in other fields should influence his decision or imposition of sentence. He must practise the conscience of intellectual honesty and deal with the matter with all the experience and humility at his command. He should remind himself that some learning does not educate a man and definitely not a Judge. The learning has to be applied with conviction which is based on proper rationale and without forgetting that human nature has imperfect expression when founded bereft of legal principle. He should not usher in his individual satisfaction but adjudge on objective parameters failing which the whole exercise is likely to be named “monstrous legalism”. In this context, I may profitably reproduce the profound saying of Sir P. Sidney:

“In forming a judgment, lay your hearts void of foretaken opinions; else, whatsoever is done or said will be measured by a wrong rule; like them who have the jaundice, to whom everything appeareth yellow.”

…

“56.   From the aforesaid, it is graphically clear that a Judge, while imposing sentence, should not be swayed away with any kind of sensational aspect and individual predilections. If it is done, the same would tantamount to entering into an area of emotional labyrinth or arena of mercurial syllogism.

 

57.     In the case at hand, as is perceptible, the learned trial Judge has primarily been guided by some kind of notion and connected them with civilised world and democracy which, in my considered opinion, should not have been at all referred to. He should remember the language of Article 302 IPC and the precedents that govern the field for imposition of death penalty. In that event, the perception might have been wrong but it could not have been said that it is based on some kind of personal philosophy. Thus, the view expressed does not sustain the concept of law and rather, on the contrary, exhibits a sanctuary of errors. Speeches or deliberations in any academic sphere are not to be taken recourse to unless they are in consonance with binding precedents. A speech sometimes may reflect a personal expression, a desire and, where a view may not be appositely governed by words, is likely to confuse the hearers. It is a matter of great remorse that the learned trial Judge had ventured to enter into such kind of adventure. It can be stated with certitude that in a criminal trial, while recording the sentence, he should have been guided and governed by established principles and not by personal notions or even ideas of eminent personalities. Binding judgments should be the Bible of a Judge and there should not be any deviation. I have said so, so that the trial court Judges are appositely guided and refrain themselves from engaging in innovative creativity or “borrowed creativity” which has no sanction in law.

(Emphasis Supplied)

It is most respectfully submitted that the Hon’ble Kerala High Court, while dealing with a sensitive issue like the present one, where inter alia the future, career, societal acceptance of the students is involved and where the students were just two semesters away from completion of their course, ought to have observed a more objective and lenient view. On the contrary, the Hon’ble High Court erroneously, inter alia on the ground that the Disciplinary Committee of the college found ‘misconduct’ to have been committed by the students, upheld the decision of the college to oust the students from the college.

In light of the aforesaid, it would be pertinent to analyze the definition of “misconduct”, to appreciate whether the judgment, which had the effect of ostracizing the students, is a good decision. As per Black’s Law Dictionary[5], “misconduct” has been defined as:

“A transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, unlawful behavior, willful in character, improper or wrong behavior, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.”

(Emphasis Supplied)

Further, as per P. Ramanatha Aiyer’s  Law Lexicon[6], “misconduct” is defined as:

“The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.”

(Emphasis Supplied)

As per Stroud’s Judicial Dictionary, “misconduct” means:

“Misconduct arising from ill-motive; acts of negligence, errors of judgment or innocent mistakes do not constitute such misconduct.”

The aforesaid definition of “misconduct” has been referred to and relied upon by the Hon’ble Supreme Court of India in Inspector Prem Chand v. Govt. (NCT) of Delhi[7].

In M.M Malhotra v. Union of India & Ors.[8] the Hon’ble Supreme Court while discussing the definition and issue of “misconduct” and various connotations in which it is used, observed:

“17.   The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word “misconduct” is not capable of precise definition. But at the same time though incapable of precise definition, the word “misconduct” on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve.

“18.   In Union of India v. Harjeet Singh Sandhu [(2001) 5 SCC 593 : 2001 SCC (L&S) 891] in the background of Rule 14 of the Army Rules, it was held that any wrongful act or any act of delinquency which may or may not involve moral turpitude would be “misconduct” under Rule 14.

“19.   In Baldev Singh Gandhi v. State of Punjab [(2002) 3 SCC 667] it was held that the expression “misconduct” means unlawful behaviour, misfeasance, wrong conduct, misdemeanour, etc.

20.     Similarly, in State of Punjab v. Ram Singh Ex. Constable [(1992) 4 SCC 54 : 1992 SCC (L&S) 793 : AIR 1992 SC 2188] it was held that the term “misconduct” may involve moral turpitude. It must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.

21.     “Misconduct” as stated in Batt's Law of Master and Servant (4th Edn. at p. 63) “comprised positive acts and not mere neglects or failures”. The definition of the word as given in Ballentine's Law Dictionary (148th Edn.) is: “A transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law, a forbidden act. It differs from carelessness.”

(Emphasis Supplied)

Further, the Hon’ble Supreme Court in D. P Chadha v. Triyugi NarainMishra & Ors.[9], held that the term “misconduct”, takes its colour from the underlying intention. In the present case, the students had no intention of committing anything that is legally forbidden or unlawful. The decision to live with someone is a personal decision and the enjoyment of the right to make the decision is so elementary in nature per se that the protection of same does not require a positive enactment of a statute or judicial sanction to that effect for its sustenance. However, there is no express statutory bar in that regard as such and hence the same is legal and any act in furtherance thereof cannot be said to be done with a mala fide intention. On the contrary, if a couple has to elope to stay together, the same may be prompted due to various ills in the society, like non-acceptance of inter-caste or inter-religion marriage, etc. In such a scenario, instead of being meted out a penal consequence in the nature of ouster from educational institution, the students, or any other person in their position, ought to be protected and resurrected by the aegis of law. This is more so in light of the fact that the petitioner had approached the Hon’ble High Court vide a writ petition, relief under which is equitable in nature.

The Hon’ble Supreme Court in another case being Ravi Yashwant Bhoir v. Collector[10], observed:

“18.    The expression “misconduct” has to be understood as a transgression of some established and definite rule of action, a forbidden act, unlawful behaviour, wilful in character. It may be synonymous as misdemeanour in propriety and mismanagement. In a particular case, negligence or carelessness may also be a misconduct for example, when a watchman leaves his duty and goes to watch cinema, though there may be no theft or loss to the institution but leaving the place of duty itself amounts to misconduct. It may be more serious in case of disciplinary forces.

19.     Further, the expression “misconduct” has to be construed and understood in reference to the subject-matter and context wherein the term occurs taking into consideration the scope and object of the statute which is being construed. Misconduct is to be measured in the terms of the nature of misconduct and it should be viewed with the consequences of misconduct as to whether it has been detrimental to the public interest.”

(Emphasis Supplied)

A bare perusal of the definition of “misconduct” in all the authoritative lexicons and dictionaries and the analysis thereof in various judgments of the Hon’ble Supreme Court makes it amply clear that “unlawful behavior”, “ill-motive”, “misdemeanor”, “wrongful intention” and the like are basic attributes of misconduct. Errors in judgments, innocent mistakes, etc. are not included within the scope of misconduct. Misconduct implies deliberately and intentionally doing something that is unlawful and/ or forbidden. However, the choice to live with someone is one of the most basic decisions of one’s life. There is no need for any intention to get married, leave alone getting married, to a particular person to live with that person. This is more so in light of various judgments of the Hon’ble Supreme Court, which will be discussed subsequently. With utmost respect to the Hon’ble High Court, it is submitted that the judgment, which is subject matter of the present discussion, suffers from missing a step with the contemporary society. Instead of protecting the students who had to elope to stay together, which choice is legally sanctioned right, the students were ousted from the college. This is unfortunate and legally unsustainable, more so in light of the judgments of the Apex Court, wherein it has been settled that consenting individuals can live together.

The error which is even more fundamental, which strikes at the root of the matter, is that the Hon’ble High Court failed to point out the rule from the college rule book, which presumably may be in the form of code of conduct, which justifies the ouster of students from college. It is a settled penal provision must be strictly construed. The Hon’ble Supreme Court in Dilip Kumar Sharma v. State of M.P held:

“23.   It is well settled that such a penal provision must be strictly construed; that is to say, in the absence of clear compelling language, the provision should not be given a wider interpretation, and “no case should be held to fall within which does not come within the reasonable interpretation of the statute. (M.V. Joshi v. M.U. Shimpi [AIR 1961 SC 1494 : (1961) 3 SCR 986 : (1961) 2 Cri LJ 696] )”

If two constructions are possible upon the language of the statute, the Court must choose the one which is consistent with good sense and fairness, and eschew the other which makes its operation unduly oppressive, unjust or unreasonable, or which would lead to strange, inconsistent results or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute.”

(Emphasis Supplied)

Further, the principle that in case of confusion in a penal statute, the interpretation in favour of the subject has to be taken, was reinstated in State of West Bengal & Ors. v. Swapan Kumar Guha & Ors. it was held:

“15.   Shri Ashok Sen and Shri Siddhartha Shankar Ray pressed upon us with considerable insistence the principle reiterated in W.H. King v. Republic of India[AIR 1952 SC 156 : 1952 SCR 418, 424 : 1952 Cri LJ 836] that a statute which creates an offence and imposes a penalty of fine and imprisonment must be construed strictly in favour of the subject. The principle that no person can be put in peril of his life and liberty on an ambiguity is well established. But, as observed inM.V. Joshi v. M.U. Shimpi [AIR 1961 SC 1494 : (1961) 3 SCR 986, 993-94 : (1961) 2 Cri LJ 696] when it is said that penal statutes must be construed strictly, what is meant is that the court must see that the thing charged is an offence within the plain meaning of the words used and it must not strain the words: “To put it in other words, the rule of strict construction requires that the language of a statute should be so construed that no case shall be held to fall within it which does not come within the reasonable interpretation of the statute”, and that in case of doubt, the construction favourable to the subject should be preferred. But I do not think that this rule of strict interpretation of penal statutes in any way affects the fundamental principle of interpretation, that the primary test which can safely be applied is the language used in the Act and, therefore, when the words are clear and plain, the court must accept the expressed intention of the legislature. It is unnecessary to pursue this matter any further in view of the fact that the language of Section 2(c) is, in my opinion, clear and admits of no doubt or difficulty.”

(Emphasis Supplied)

It is pertinent to mention at this juncture that the Hon’ble Supreme Court, in Lata Singh v. State of U.P & Anr.[11] held that a major is free to “marry anyone she likes and live with anyone she likes.” As such, in an age and era where the Hon’ble Supreme Court has taken and adopted a progressive view, and given legal sanctity to ‘live-in’ relationships[12], to hold that “living together without even contracting a marriage”, is a drastic step which will result in drastic consequences, is not only out of tune with contemporary society, but also against the judgments of the Hon’ble Supreme Court and hence bad in law.  

It is further worth noting that the Hon’ble High Court, while deciding the present case was not only a court of law, but also a court of equity, implying thereby that the Hon’ble High Court had all the powers to mete out corrective justice to the Petitioner. The college by ousting the students has marred and stigmatized them for life. It is generally when a person is put in such a situation that a person becomes hardened due to loss of faith and trust in public institutions. Societal pressure and pressure from relatives, if not from immediate family keeps building on a person and in such situations, incidents where students have been driven to commit suicide are not unheard of.

The judgment which is subject matter of present discussion is contrary to various judgments of the Hon’ble Supreme Court. Even if it is presumed for the sake of arguments that some wrong was committed by the students, they should at the most have been handed back to their parents for counseling or been reprimanded and admonished and given a warning by college authorities. Being ousted from college is a punishment absolutely out of proportion and not commensurate to the wrong committed, if any. In such a situation, wherein individuals have to elope to enjoy their basic rights, an environment should be ensured by authorities where the victimized individuals do not suffer at the hands of the society and are restored to a position where they can freely enjoy their rights, given the fact that we live in a free country.

To conclude, Portia’s speech from Shakespeare’s Merchant of Venice is worth quoting –

“The quality of mercy is not strain’d,

It droppeth as the gentle rain from heaven

Upon the place beneath: it is twice blest;

It blesseth him that gives  and him that takes:

…

But mercy is above this sceptered sway;

It is enthroned in the hearts of kings;

It is an attribute to God himself;

And earthly power doth then show likest God’s

When mercy seasons justice…”

………………….

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