TAKING PRIDE IN PREJUDICE: A BRIEF CASE COMMENT ON DAYAN WARSI V. NLSIU

Introduction

“I will buy with you, sell with you, talk with you, walk with you and so following- but I will not eat with you, drink with you, nor play with you”.

- William Shakespeare

On 18th December 2020, a Single-Judge bench headed by Justice Krishna S. Dixit disposed of an unusual and extraordinary Writ Petition filed under the provisions of Article 226[1] of the Constitution of India. The Petition was filed by an undergraduate law student against the prejudicial and ‘step-motherly’ treatment accorded to him by his educational institution, the National Law School of India University (NLSIU), also sycophantically referred to as the Harvard of the East.

The present article seeks to analyze the facts of this judgment and its broader impact on India’s image as a ‘responsible state’ under International Law and how the judgment speaks volumes about the sheer profligacy of India’s commitment to the Right of Equality, Right against Discrimination and Right to Education.

Facts

The High Court of Karnataka recently granted a petition by a BA LLB (Hons.) student (Dayan Warsi) at the NLSIU and ordered the University to promote the student-petitioner to the 4th year of his degree immediately, after he was denied such promotion by the University twice- in July and in August 2020. The Defendants (University) had claimed that this was due to Regulation II (1)(b) and (c) of the University’s Academic Examination Regulations (AER), 2009 read together, corresponding to Regulation III(4) and (5) of the AER 2020[2] by which the petitioner disentitles himself to seek promotion in more than one course in the concerned academic year when he has deficiencies in attendance, and that this clause could in no circumstance be violated since they were mandatory.

While accepting Dayan Warsi’s petition, Justice Krishna S Dixit firmly disapproved of the approach of the University’s doctor who declined to verify the petitioner’s medical record {which is mandatory as per the UGC rules} because his attendance was approximately 65%, which is less than the prescribed limit of 67% and the Bar Council of India’s guidelines, which mandate 75% attendance. Justice Dixit also went on to acknowledge that the University had shown a liberal attitude in similar circumstances for 3 other students, even though their attendance was lesser than the required percentage. The Court also took into consideration the affidavit filed by the University Registrar which acknowledged that a certain student was condoned even though he had an attendance percentage less than 67%, which supported the claims of the Petitioner.

Observations of the Court

The Court observed that the affidavit submitted by the defendants “borders perjury” and was prejudicial since the institution had previously permitted several other students with an attendance percentage lower than the required percentage. Given these facts and arguments, the Bench found that the petitioner should have been complied in accordance with AER 2009, and with AER 2020[3] as it has no retrospective impact (as was held in the case of Aakash Deep Singh v. National Law School of India, University & Anr.[4]). Justice Dixit scathingly remarked that what is being interpreted are just “Campus Regulations” and not legislative instruments such as the “Cattle Trespass Act”. His Excellency further went on to state that the guidelines that are imposed to regulate and educate young minds in educational institutions should be subject to justice and not prejudice. The Court immediately declared that it was very unreasonable that the defendants argued how the petitioner should have lodged the motion to seek forgiveness from the attendance shortfall within 6 days of resuming classes. The Court closed its order by permitting the Writ Petition filed by the petitioner to succeed while using subtle mockery to highlight the failure of executing justice towards ensuring the welfare of its students.

Analysis

A thorough reading of the case elucidates on the failure of National Law Colleges in abiding with Government Rules, and precisely bending situations in their favor by using the excuse of “matters like this by their very nature need to be left to the University authorities sans judicial interference…”. This case highlights the discrimination that such institutions carry out amongst their students to suit their case, which has been seen in a gamut of Indian cases such as Shri Krishnan v Kurukshetra University[5]. It is a well-known fact that students, such as the Petitioner in this present case, who hail from socio-religious minorities, Economically Weaker Sections (EWS), or historically disadvantaged Castes and Tribes (commonly referred to as Scheduled Castes, Scheduled Tribes and Other Backward Classes in India) are the most susceptible to discrimination.

It is even more shameful that a matter of such callousness and high-handedness has arisen in an institution that was built by the late Prof. N.R. Madhava Menon (who also received India’s 4th highest Civilian Honor, the Padma Shri for pioneering legal education in India) on the foundations of ‘equality, merit and equal access to education’ in 1986. The University had also recently come under fire for denying a student the right to reappear for the examinations in which he had failed[6].

Ramifications of the Case on India’s Image as a ‘Responsible State’ under International Law

The case adds fuel to an already raging fire against the Indian Government by providing an impetus for human rights analysts to lament India’s abysmal record under International Human Rights Law – which has led to prominent Human Rights Organizations such as Amnesty International ceasing their operations in the country[7].

It is important to note that the Right to Equality, Right against Discrimination, and Right to Education has been duly accorded the status of Fundamental Rights under the Constitution of India, thus making them inviolable. India had also passed the landmark Right to Education Bill in 2009 which focused on cementing the rights enshrined to the citizens of India under the 86th amendment by announcing a ‘Zero Tolerance Policy’ against ‘discrimination of any kind’, particularly against socio-religious minorities, in the sphere of education.

India is also a party to a host of international legal instruments such as the International Convention on Civil & Political Rights (ICCPR – Article 18, which guarantees everyone the right to freedom of thought and religion)[8], International Convention on Economical Social & Civil Rights (ICESCR- Article 13 – Which guarantees everyone the Right to Education)[9], UDHR[10] and most importantly, UNESCO’s Convention Against Discrimination in Education[11] which prohibits the discrimination of any individual in a manner that may adversely hamper his/her access to the right to education.

However, incidents like these prompt one to think about the sheer profligacy of Indian democracy, which prompted a prominent Indian Opposition Leader to comment that democracy has possibly ceased to exist in India[12]. Narendra Modi and his government must have a long and hard think about the impact of their divisive politics of Hindutva and how it impacts the lives of the citizens of India, particularly in the BJP-ruled states such as Karnataka. It’s clear to see how in this case the sphere of legal education is impacted by a bad ‘Centre-State’ relationships which is evident from the fact that despite calling itself a ‘National Law University’ – NLSIU (like 23 other National Law Universities), is constituted under State Law and not a Federal Bill.

Conclusion

It is important to consider at this juncture that although certain issues can only be dealt with better when they are solely left to the institution’s discretion, such issues must pertain to directory rules only, and must be accompanied by reasons that are justifiable and not of self-serving nature, beneficial to the cause of the institutions solely.

Every student has the right to be treated equally, in a just a rational manner, and it is highly unacceptable to view institutions of such high stature tergiversating the very essence of this idea. Hence, the Court rightfully referred to the case of Principal, King George’s Medical College, Lucknow v. Dr. Vishan Kumar Agarwal & Anr.[13]where it was clearly stated that any matter concerning student welfare must be taken after taking all the relevant considerations, such as the essence of the provision, its intent, and the implications of easing it concerning educational excellence as well as its compliance with India’s International human rights obligations, read in consonance with its domestic laws – subject to the doctrine of ‘Reasonable Restrictions’.

No public body, least of all islands of educational excellence, should be allowed to ‘cherry pick’ individuals who shall be the sole benefactors from any relaxation in their Regulations. The rigor of a regulation must be alleviated if the Regulations allow that relief or if the rule is solely directory in nature.

[1] Article 226 (1), Constitution of India Bill, 1951. [2]National Law School of India University B.A. LL.B. (Hons.) Academic and Examination Regulations,2020. https://www.nls.ac.in/wp-content/uploads/2020/09/Academic-Examination-Regulations-2020.pdf [3]Ibid. [4] Aakash Deep Singh v. National Law School of India, University & Anr., Writ Petition no. 11287 of 2020 [5] Shri Krishnan v Kurukshetra University, 1976 AIR 376 [6] Supra 4, also see Jerush Priyatham Arava, High Court of Karnataka Directs NLSIU to Conduct Special Repeat Exam for Student, LAWSISTO, https://lawsisto.com/legalnewsread/ODczNQ==/High-Court-of-Karnataka-directs-NLSIU-to-conduct-Special-Repeat-Exam-for-student (Last Accessed 1 Mar 2021) [7] Sameer Yasir and Hari Kumar, Amnesty International Shutters Offices in India, Citing Government Attacks, NYTIMES (Sept 29, 2020), https://www.nytimes.com/2020/09/29/world/asia/india-amnesty-international.html (Last accessed 1 Mar 2021) [8]Art. 18. The United Nations International Covenant on Civil and Political Rights, 1966. https://www.ohchr.org/Documents/Professionalinterest/ccpr.pdf [Accessed on 27 December 2020]. [9]Art. 13. The International Covenant on Economic, Social and Cultural Rights, 1966. https://cambodia.ohchr.org/sites/default/files/book/ICESCR-EN.pdf [Accessed on 27 December 2020]. [10]Universal Declaration of Human Rights, 1948. https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf [11] Convention Against Discrimination in Education, 1960. https://unesdoc.unesco.org/ark:/48223/pf0000132598 [12] ANI, There is No Democracy In India, Says Rahul Gandhi, BUSINESS WORLD http://www.businessworld.in/article/There-is-no-democracy-in-India-says-Rahul-Gandhi/24-12-2020-357624/ [13]Principal, King George’s Medical College, Lucknow v. Dr. Vishan Kumar Agarwal &Anr., (1984) 1 SCC 416.



This article has been written by Naman Anand & Namrata Bhowmik.

Naman is a 3rd Year BA LLB (Hons) student at the Rajiv Gandhi National University of Law (RGNUL), Punjab. Namrata Bhowmik is a 3 rd Year BA LLB (Hons) student at the Symbiosis Law School, Hyderabad.