Kerala HC's Order on Campus Politics – More Political than Legal

Kerala HC

The High Court of Kerala, recentlypresented its views regarding the student political activities in Kerala Campuses and in an Interim Order (passed on 13/10/2017) itself the Court endeavoured to ban campus politics in its entirety. It’s interesting to note that out of the five-page order, except four sentences, every drop of ink was spent for the purpose of eradicating politics from campuses. I am left with no option but to argue that the further hearings of the case, MES Ponnani Management V. State of Kerala, Students Federation of India and others, would be a mere formality;  for the text of the order reveals the Court’s true stripes. It is thus relevant to analyse the document in this context, albeit being an interim judicial order in the contempt petition numbered Con. Case (C).No. 1597 of 2017 (S) IN WP(C).28239/2017.

The text contained in the order from the very first paragraph to the last consistently reveals the Court's conceptual and ideological bias, upon which the Court issued its order. The bottom-line of the Court’s judicial opinion was its personal philosophical view that there is no place for the political instruments such as satyagraha and hunger-strikes in a Constitutional Democracy. This standpoint itself is technically flawed or can be challenged; the Court doesn’t even attempt a discussion. It reads Constitutional Democracy as Constitutionalism, purblind. It tries to establish what it considers as substantial justice personally and politically. It is one of the most important canons of judicial ethics (American Bar Association, 1924) that the judge should not apply his personal conception of justice in any particular case. In a direct contravention of this principle, the current order not only affected the interest of the concerned parties but also seriously injured the country’s larger political interest.

The order begins with the vivid narration of the judge's personal sentiments towards the appearance of a 20-year-old computer science student pursuant to notice of the Court.  In the very first paragraph of the order, the Court asks thus:

“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.” (Para.1)

The Court, with the above sentence, makes a tangible claim that politics and political activities are antithetic to graduate schooling. The blanket statement is fully loaded with the Judge’s prejudices as to what education is, who should study what, and why one must study and who should decide upon these questions as well. It fails to consider numerous important goals of education such as social integration, cultural transformation, and realisation of national goals, identified and reiterated by numerous Education Commissions of India. Instead it pays heed to an apolitical vision of graduate education conditioned by corporate and communal management politics.

Krishna Iyer in 2003 condemned the very same judicial impression while commenting upon the Sojan Francis. He categorically opined that banning campus politics “is violative of Article 21 because the `right to life' includes the right to moral, social and cultural development which, in turn, involves a free opportunity for uninhibited political education…” He held therefore that it is a grave default to deny to the population at any level the right and, indeed, the duty to acquire a basic knowledge of local, national and global political forces.

It is unfortunate that the Court forgets that the education is nothing but in itself a political process. In fact, the Court inadvertently accepts this in the above-quoted sentence where it holds the view that elders (parents) should also be in approval of what students study or why they study. The very fact that we have a formal education system, which is under control of the Ministry of Education, University Grants Commission and other political bodies suggest that the education itself is politics. Every time a political party comes into power, after the elections, the head officials of all these institutions are most likely to be changed. Issues regarding syllabus and fee structuring are debated in parliaments and legislative assemblies.  All these tritely suggest that the education in itself is a political activity. The Court but conveniently forgets this side of education establishment in India. It overlooks the idea that it’s the political future of the nation is being sculpted, when a group of teachers is allowed to decide upon the syllabus, when management is allowed to decide upon courses offered, and lastly, when the parents decide upon which course to be pursued by the student and why a student should pursue it.

The Court, thereafter, immediately endeavours to extend its apolitical vision to the whole of the country. In an unusual fashion, the Court expressed it as their wish to eradicate Dharna, hunger strikes and other practices like Satyagraha from a country like India. The order quotes as:

“We would like to observe is that political activities like Dharna, hunger strikes and other practices like Satyagraha have no place in a constitutional democracy, much less in academic institutions.”

Interestingly, the Honourable Court chooses to pick words from Dr B. R. Ambedkar’s Constitutional Assembly speech in order to justify its liking to observe that in a Constitutional Democracy, there is “no place” for the peaceful political instruments such as satyagraha, dharna and hunger strikes. The Court, but condemnably, went silent about the context in which Dr B.R. Ambedkar put-forth the quoted opinion. It also chose to be silent about the rest of Dr Ambedkar’s words, which could have given the larger picture of his argument.

As per the Court’s order, Dr. B.R. Ambedkar had said while introducing the Constitution for its adoption to the Constituent Assembly on 25.11.1949 said:

“If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgment we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods of achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.”

However, Dr Ambedkar then continued to state thus, which the Court didn’t quote

“The second thing we must do is to observe the caution which John Stuart Mill has given to all who are interested in the maintenance of democracy, namely, not "to lay their liberties at the feet of even a great man, or to trust him with power which enable him to subvert their institutions". There is nothing wrong in being grateful to great men who have rendered life-long services to the country. But there are limits to gratefulness. As has been well said by the Irish Patriot Daniel O'Connell, no man can be grateful at the cost of his honour, no woman can be grateful at the cost of her chastity and no nation can be grateful at the cost of its liberty. This caution is far more necessary in the case of India than in the case of any other country.”

The above words indicate about the relevance of political activities in a constitutional democracy. They suggest a balance between political and constitutional methods and not a complete other-throw of political order for a constitutional order, as attempted by the Honourable High Court in the instant order. The very essence of Dr. Ambedkar’s constitutional speech could have deterred the Court from delivering the instant order.  He was expressing his anxiety about a possible resurgence of caste-ist and religious identities (which he calls as a creed) and its politics over and above the unique identity of the Indian nation. He was wondering whether these sub-national powers, upon the exit of British, would resurface again. The Court forgets that it was actually forbidding secular narratives from the most important political space of the country while delivering this opinion.

Remember what J. Krishna Iyer said about Kerala’s Educational Establishments. He said “Communal managements of educational institutions are the bane of the Kerala educational establishment. It is full of politics, survives by politics, propagates political perspectives and controls the State educational establishment through its political clout.” Therefore according to Krishna Iyer, the Court by alienating student political activities from campuses was actually endangering the potential for avante-grande political thought from its campuses and was also advocating of political illiteracy, social insensitivity and cultural philistinism.

To argue that political education cannot happen through movements, associations, strikes and dharnas, but only through the tuition of political science syllabus material by management appointed teachers/experts is a negation of political pluralism and the developmental choice of the individual. It is anti-democratic to stop a student in the campus from talking and arguing politics, forming associations for politics and then advocating for their political choices. Unfortunately, the High Court in the instance case not only said “no” to these activities but went on to use ideas like “civilised and uncivilised” distinguishing the students, who come to learn and others, who come to involve in politics.

The basic reasoning of the Court is very simple and clear: there are no reasons by which one may take up political instruments in a Constitutional Democracy, especially in an academic atmosphere, since a plenitude of legal remedies is available in the Constitution. What is flawed here is that the Court premised its judgment on a confused understanding of the terms, ‘Constitutional Democracy’ and ‘Constitutionalism’, instead of reasoning that the students in the instant case went on to take up political tools and then disrupted the academic functioning for more than two months, that too without resorting to other available legitimate legal remedies.

It is the basic principle of the Constitutional Democracy, unlike Constitutionalism that when constitutional remedies fail, or when they do not withstand their integrity (like in the instant order), people can resort to political instruments for improving the quality of their Constitutional norms. Interestingly, such use of political instruments is also legitimated in the Indian Constitution via numerous provisions. (For instance: Art. 14, 19, 21, 39).

The Court, however, said that the students in the instant case if they had a legitimate grievance, they could have approached student’s council or academic council instead of resorting to dharna. This argument would have appealed a logical mind, if the Court held the same by looking into the facts and merits of the case. Instead, the Court argues thus:

“The very fact that people resort to Dharna/hunger strike shows that they themselves are aware that their demands are not legal or legitimate and they use these coercive methods to achieve what they could not have achieved legally, for if it was otherwise they ought to have peacefully come to Court or move the statutory forums for redressal of their grievances”

It is so devastating to the Indian political minds that the Court places its analogy in the above mentioned generalized context, which is so unbecoming of the judicial process. The category which the Court tries to create is an utter disrespect of the very process by which we are able to put up our Constitutional edifice. It is nothing but sheer conceptual bias and political excitement, which the led the Court to hold on to such political statements as its judicial reason. It is bewildering to see that not even a single legal provision has been called into service, in this order.

Finally, the Court hits the maximum height of its excitement towards the end of its order when it establishes inadvertently a “right to rusticate” to the management of education institutions. It is still a question of law whether there is “a remedy of rustication” available for the management against the students participating in the political activities. Yet, the Court had little hesitation about establishing a new found right. It did not stop there but also went on to hit a post-climax bang by fiercely stating that political career and graduate education can’t go together. Hence it directed the student respondent in the case “to concentrate on his studies rather than indulge in politics in the college premises if he is so inclined, or he may withdraw from the college to continue his political career, if he so chooses. But the two cannot go together.”(para.7)

In short, it has to be admitted that the Court took every its effort to make sure that politics is ostracized from the Kerala campuses. When it tried hard to alienate politics from education, on one hand, the Court failed miserably to differentiate between legal and political categories in its own decision-making process, on the other hand. The plenitude of obiter dicta (mostly unwarranted) and the scarcity of the merits' discussion reveal the ideological and conceptual bias which has occupied the judicial mind. The Court could have thought once more before it wrote “but the two cannot go together”. A man by very nature is a political animal. Not a single event from his birth to funeral rites is free of politics. It's the very essence of his personal liberty.  Alienating it from any of his activity without a just fair reasonable and proportionate law, especially from his education, is essentially a violation of his right to life - a violation of Article 21.

Nithin Ramakrishnan is an honorary fellow of the Centre for Economy, Development and Law, Thrissur and is currently working as Asst. Professor in Law, at Department of Ethics, Governance, Culture and Social Systems, Chinmaya University for Sanskrit and Indic Traditions, Kochi. However, the views expressed in the article are in the personal capacity.

[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]