I vividly remember that one lecture delivered by a professor of the Institute of Law, Nirma University, Ahmedabad, where he was explaining a topic related to Legal-Political Philosophy. Halfway through the lecture, he got annoyed because one of the students was conversing with a classmate (the student asserted that he had to pass on an urgent message). This may sound like a regular classroom scene, and I might have even forgotten this incident, if the professor had not taught us a bitter yet fundamental lesson that day. This was a lesson that continues to reverberate even now. The student in question was creating distractions that impeded the flow and effectiveness of the professor's lecture. The professor asked him to refrain from talking, and continued with his lecture; however, he paused soon thereafter and said, "I don't have an issue with you if you wish to discuss an important matter with your classmate, it is a trivial issue for me. It's just that I can't afford to let a rebel voice exist and grow in my class". This critical remark had a far-reaching and pervasive effect on all of us present there and it promptly untied the knot of uncertainty revolving around the role of a State and a University as a monitoring authority in a student's life.
What he meant by his words then, could be understood in the light of the prevailing state of affairs. Recently, Nirma University's Institute of Law, a premier private University in Gujarat's Ahmedabad sought an undertaking from students that they will refrain from participating in protests against the Citizenship Amendment Act. According to media reports, the University also advised the parents of these students to counsel their 'wards'. The SMS sent to parents of these students made it crystal clear that "The police and Intelligence Bureau-IB have taken details of your ward from us." The whole message read,
"Dear parents, greetings from the Institute of Law, Nirma University. It has come to our knowledge that your ward was involved in protest against recent issues. The police and Intelligence Bureau-IB have taken details of your ward from us. We at our end have counselled the students to refrain from any such activities and we also expect the support from your side. This is also to inform you that if your ward continues to participate in the protest, the police might create a record against him."
The Struggle for Supremacy
As we grow up, we programme ourselves in a way that we get accustomed to the scheme of an orderly society. There exists an implied understanding that no matter where we are and what we do, we need to streamline and organize our actions within the four walls of various norms and restrictions (good and bad, both). Such restrictions/norms could be in the form of legal rules or societal pressures or something else of that nature, but the reality is that we are always under the control of an authority, which sets the rules/precedents of the game, and I think most of the times, such an authority acts as a necessary evil.
This game is nothing but an inter-play between our actions/emotions/beliefs etc. and their respective reactions, affected by the general circumstances of the environment we live in. As Rousseau would say, a human being travels through his/her state of autonomy to the modern condition, dominated by inequality, dependency, violence, and unhappiness and for this very reason he famously said, "Man is born free and everywhere is in chains." These chains are what we may call the necessary evil(s), it could be anything, the Constitution, State, University, Society, etc.
However, it ain't always a bad idea to have rules and restrictions in place, so that our nose doesn't get into the way of others and this phenomenon demonstrably does pass the test of logic and common argumentation as well; while one can't poke one's nose into our state of affairs, likewise we should also not be allowed to affect others' rights, fair enough! For example, our Constitution is in itself a document which contains set of rules that defines our limitations (apart from being a ready reckoner of our rights) and I purposefully call the threshold of such limitations, 'lawful enjoyment boundary'.
Needless to say that such restrictions aren't just for us to obey, but even the State and its instrumentalities have to adhere to the limits set by such rules and not disturb the peaceful enjoyment of our rights. For this very reason, the Constitution could be called the ultimate referee (between people and state). Again, needless to say that in case of any difficulty (to decide if the state, its instrumentalities or the people of the state have transcended the lawful enjoyment boundary); we may always go back to the basics, i.e., the Constitution. At this juncture, I wish to make it quite clear that I cannot locate any authority, no matter how thunderous it appears, to be above the authority of our Constitution.
Till now, everything sounds fair and above board but the teething trouble arises when the rules/notions set by the Constitution is (or attempts are made in this direction) vanquished by an authority which wilfully crosses the 'lawful enjoyment boundary', and this uncalled-for intervention from such an authority seldom becomes the root cause of the all the sufferings of an individual. Such an intrusion is arguably made from the side of the State or its instrumentalities. On the other hand, when such a boundary is traversed by an individual; his intentions are played down by the state through its prodigious machinery, but what happens when such a boundary is out rightly neglected and the authority of the Constitution is overthrown by the state itself? Does an individual have the ability to serve similar treatment to state? NO. When such a situation arises only fear prevails and our prior encounters with state machinery have told us that in such a critical quandary, the liberty of an individual is bound to be snatched away and surveillance/policing becomes the norm.
Does Fear Rule Us?
It seems that the prevailing sense of fear has reached our University spaces as well; however it is still unclear if the University is trying to don the uniform of such a surveillance authority or it is acting as the general factotum (agent) of the ultimate surveillance authority i.e., the State (out of fear, maybe?). Coming back to the professor's remark, it seems we were too young then to get underneath our comfortable senses (to surrender to University's authority) to seek new and nuanced rebuttals to our professor's argument/logic. But yes, later on many of us realised that we do have a right to become a rebel voice (while obeying all the laws/norms/rules/regulations) tightly stitched to our own free will. We do have a right to think differently, act differently and be different and when a University establishment preaches plain principles, it must also realize that those principles may have practical applications too.
In the present case, the involvement of 'The police and Intelligence Bureau-IB' is worrisome and this is nothing but a case of State surveillance, where the State is continuously keeping an eye on you and your activities and all the while it keeps you on your toes. Probably we may have to ask some pragmatic questions; why should a responsible citizen be made to worry about a prospective police record that could be made against himself or herself? Why should we be afraid of our thoughts if we aren't doing anything against the law? Should University management be allowed to dictate our course of action? The answers to such questions demand deep interrogation.
The Idea of Peaceful Protest: Doesn't Exist Anymore?
What should such indirect attacks on freedom of speech and expression be called? To say the least, such attempts to monitor and straighten out activities/beliefs of students are excessively disturbing. Article 19 of our Constitution talks about Freedom of speech and Expression and since peacefully protesting is a facet of this very basic right; this cannot be denied in any case, whatsoever. Honorable Supreme court, in the case-law of Mazdoor Kisan Shakti Sanghatan vs Union of India [Writ Petition (Civil) No. 1153 of 2017]. [Civil Appeal No. 863 of 2018] while talking about inter-linkage between Article 19 and right to peacefully protest, stated:-
"48…Undoubtedly, holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right. This right is specifically enshrined under Article 19(1)(a) and 19(1)(b) of the Constitution of India. Article 19(1)(a) confers a vary valuable right on the citizens, namely, right of free speech. Likewise, Article 19(1) (b) gives right to assemble peacefully and without arms. Together, both these rights ensure that the people of this country have right to assemble peacefully and protest against any of the actions or the decisions taken by the Government or other governmental authorities which are not to the liking."
"Legitimate dissent is a distinguishable feature of any democracy. Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views. A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. That is the reason that this Court has always protected the valuable right of peaceful and orderly demonstrations and protests."
The Judgment rightfully clarifies that, among other rights, people have the 'right to assemble peacefully and to protest'. Likewise in the case-law of Himat lal k. Shah vs. Commissioner of Police, Ahmedabad & Anr. 1973 SCR (2) 266, Constitution bench of Honourable Supreme court held that the right to protest is not only a fundamental right, but the State must aid the right to assembly of the citizens. It was held in this case that,
"33. This is true but nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order."
In the present case at hand, even the police and University authorities haven't claimed that the students were violent while protesting, also no other irregularities in their way of protesting have been pointed out, so why should they be 'counselled' (counseled) either by the University or their parents? Should they be 'counselled' (counseled) because they own an opinion different from that of others, or the University is afraid of being misunderstood (that the beliefs/views of the students are in fact of the University)? Also, when the Supreme Court itself acknowledged the duty of the State to aid the right to assembly of the citizens, then what was the police doing at the University, when they should have promoted the right of students to peacefully protest? Could it be said that the police (on behalf of the state) conducted such an inquiry to 'impose reasonable restrictions in the interest of public order'? NO.
Also, why shouldn't the parents be happy if their 'ward' is putting forth his or her views in a way (by peacefully protesting) which has garnered approval from the Supreme Court of the Country itself? We don't have any answers to these questions. Also, the police officials haven't come up with an explanation for this act of surveillance and supplying unnecessary cautions to the students (through University management). However, we can be sure about one thing, that this will have a chilling effect on the students. In principle, State must provide a platform where people do not shy away from putting forth their views and this will only happen if our Governments realize that people do have a right to assemble and demonstrate by holding dharnas and peaceful agitations.
No one can argue against this fact that these are the basic features of a democratic system. Since we live in a democracy, it goes without saying that we, the people of India have a right to raise our voices against the decisions and actions of the Government (if we feel the need to do so). We can even go to the extent to express our displeasure over the actions of that very Government, which we have chosen ourselves and that too, on any subject of social or national importance. In Ramlila Maidan Incident, in re, reported in 2012 (5) SCC 1, the Court held that,
"It is the abundant duty of the State to aid the exercise of the right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions."
The State and its instrumentalities have failed miserably to secure to its people (the students in question), the very basic right i.e. the right to peacefully protest and very deliberately they have made it the case of state surveillance.
Role of the University
But the question that calls for our primary attention is, why should a University be asking its students (who also happen to be the citizens of this country) to refrain from such activities? It has been claimed by the University that based on local media reports; police visited the University and asked if students from varsity participated in the protests. University claims that the police said that the students were creating a nuisance while protesting. However, when contacted, police officials revealed that the university shared information of students who participated in the legal protest outside Gandhi Ashram.
According to the report by Ahmedabad mirror, J P Jadeja, Police Inspector of Sola police station, said the university proactively shared the details of the students who participated in a protest outside Gandhi Ashram. While we do not claim the truthfulness of these claims, but one thing is for sure that the University wanted to distance itself from the whole incident and while doing so, it asked the students (again, who are the citizens of this country) of the Institute to sign an undertaking that they will refrain to participate in such protests.
Let's understand things in plain terms, it is quite understandable that the University doesn't subscribe to a view that is supported by a few of its students. This argument also holds water that the University doesn't want such students to represent the views of the University while staging their protest against an Act of Parliament. The University does have this right to take actions against their students if they are found to be progressing against the law, but cautioning their parents that a police record might be created against them doesn't sound alright (when in fact no case of disobeying the law or regulations has been made out against the students). An Institute of Law shouldn't be asking its students to refrain from staging a peaceful protest, and if it does such an act it is nothing but a ridiculous way to project itself as the guardian of its students.
University establishments across the nation should realize that the eventual object of an educational platform is "not to cut down jungles, but to irrigate deserts", as C.S. Lewis would say. A University establishment cannot own your thoughts and beliefs and cage them in the dark prison of dejection; we must not forget that a student is not just a student, but a human being as well, who also happens to be the citizen of this country, having all the rights enshrined under the Constitution of India. He can very well form his beliefs and he is entitled to his fundamental rights, being a University which imparts legal education, it is but natural that they should not be validating (if not glorifying) the notion of state surveillance.
It seems, we are indeed not free enough to speak what we feel, but we are made to speak what we ought to say or just remain silent for that matter (in accordance with the wishes of authorities which happen to supervise us). The intriguing question is, shouldn't our Universities be allowing us to grow on our terms? Or does our growth in a University come with certain caveats (in which direction and way we ought to grow)? We do have a belief that the role of the Constitution is to mediate the place of an individual (in accordance with the principle that equals should be treated equally and unequal, unequally) within the society (including the Universities). And so, shouldn't we be allowed to exit University gates with our beliefs nourished by us on our own, since our Constitution guarantees that freedom to us? Should our University be allowed to follow us wherever we go? And up-to what extent? Are we under our University surveillance too? Let's ponder upon these questions while keeping in mind that the idea of free speech is not of an age, but for all time and lest we forget this, we should continue reminding this to ourselves.
(The author is an ex student or Nirma University.)
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]