Required to decide upon conflicting aspects between the upsurging menace of ragging and the future of those young-minds susceptible to fall prey to the lure of having fun with the college juniors, the Delhi High Court in a recently reported decision [Akshay Choudhary v. University of Delhi 2010 (174) DLT 645] delineated the parameters on which the proportionality of the punishment to be meted out to those indulgent in ragging was required to be determined.
The High Court inter alia observed as under;
12. The petitioners have not challenged the factual aspect of having indulged in ragging. The petitioners have also not contended that there was any defect in the procedure adopted by the College/University in inflicting the administrative punishment on them. The counsel for the petitioners has only contended that the petitioners be permitted to undergo final year of their graduation in the academic session 2010-11 to enable them to appear in the examination scheduled in 2011. The petitioners are not even seeking admission to the Hostel. The counsel for the petitioners further states that if the punishment is confined to rustication for one year which they have already undergone, they will not take the matter further.
13. I have therefore considered the matter only from the aspect of proportionality of punishment.
14. However before proceeding to discuss the same it would be appropriate to record that the menace of ragging in educational institutions was reaching alarming proportions and demanded the situation to be dealt with a stern hand. I must also add that owing to measures including as taken against the petitioners, the menace appears to have toned down considerably in the current academic year. No fault can thus be found with the decision of the Vice-Chancellor. The Vice-Chancellor has the onerous task of maintaining discipline in the University/Educational Institutions affiliated to the University and in a situation as of ragging ought to send a strong deterrent signal. Thus, the matter has to be considered not only from the aspect of punishment to the culprits but also from the aspect of sending a strong deterrent signal so as to prevent others from indulging in such vice. It is the Vice-Chancellor's duty to prevent recurrence of such incidents in the large campus under his jurisdiction. I, therefore, intend to clarify that this Court in considering the aspect of proportionality does not intend to cast any doubt as to the reasons under which the Vice-Chancellor of the respondent University has acted. As far as the Vice-Chancellor is concerned, the larger interests of academic life in the campus and the interests of other students outweigh the individual interests of the petitioners.
15. This Court has however reconsidered the matter only on the thought that, all in all punishment hardens and renders people more insensible; it concentrates; it increases the feeling of estrangement; it strengthens the power of resistance (courtesy Friedrich Nietzsche, German Philosopher) and that any punishment that does not correct, that can merely rouse rebellion in whoever has to endure it, is a piece of gratuitous infamy which makes those who impose it more guilty in the eyes of humanity, good sense and reason, nay a hundred times more guilty than the victim on whom the punishment is inflicted. (courtesy Marquis De Sade, French Novelist). The French Philosopher Voltaire famously said that the punishment of criminals should be of use, when a man is hanged he is good for nothing. Justice Krishna Iyer also in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P. AIR 1978 SC 429 observed that punitive harshness should be minimized.
16. The petitioners were young lads barely 20 years old when indulged in ragging. Undoubtedly they are guilty, however the said guilt will be in the context of their youth. Aristotle said “Young people are in a condition like permanent intoxication, because youth is sweet and they are growing”. Oscar Wilde by saying “To get back one's youth one has merely to repeat one's follies” put the matter succinctly.
17. The question therefore which perturbed me was that when the Regulation aforesaid provides for administrative punishment, of minimum of suspension from attending classes and academic privileges and maximum of expulsion from the Institution and consequential debarring from admission to any other Institution for a specified period, whether the maximum punishment is today justified. The signal intended to be sent by expelling the petitioners has already reached where it was intended. The petitioners have shown sufficient remorse. They have not indulged in any reckless litigation. I find that students punished for ragging or violation of disciplinary norms of the College/University have approached this Court in the past with all kinds of pleas, of the principles of nature justice having not been complied with, hearing having not been given, right of cross examination having been not given (see Ashish Bhateja v. Indian Institute of Technology AIR 1993 Delhi 354 and Mansoor Azam v. Jamia Millia Islamia 90(2001) DLT 735). The petitioners have not indulged in disputes of any such nature.
18. To allow the punishment as meted out to stand would also amount to nullifying what this Court had attempted to do by quashing the FIR against the petitioners. Not only the petitioners would remain without Degree of graduation but their future prospects would also be seriously hampered.
19. The Supreme Court in Ranjit Thakur Vs. Union of India AIR 1987 SC 2386 held that the question of choice and quantum of punishment, though within the jurisdiction and discretion of the punishing authority, but the sentence has to suit the offence and the offender; it should not be vindictive or unduly harsh nor it should be so disproportionate to the offence so as to shock the conscience and amount in itself to conclusive evidence of bias; the punishment if in outrageous defiance of logic, then would not be immune from correction. Reliance was placed on the earlier judgment in Bhagat Ram Vs. State of Himanchal Pradesh AIR 1983 SC 454 laying that penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of misconduct would be violative of Article 14 of the Constitution.
20. The Supreme Court in B.C. Chaturvedi Vs. UOI AIR 1996 SC 484 held that the Court in exercising the power of judicial review, depending upon the facts, is empowered to appropriately mould the relief, either by itself imposing another penalty with a view to shorten the litigation or by refering matter back to the disciplinary authority. The disciplinary authority in the present case being the Vice-Chancellor as in-charge of the educational Institution, with a view to ensure that discipline is maintained and required to be armed with sufficient power so that those who are to study and improve their careers should not be the victims of a handful of persons in the Institution who spoil the academic atmosphere by indulging in anti-social activities in the matter of discipline has chosen not to consider the representation of the petitioners.
21. The Division Bench of the Karnataka High Court in T.T. Chakravarthy Yuvraj Vs. Principal, Dr. B.R. Ambedkar Medical College AIR 1997 Karnataka 261 held that in inflicting appropriate punishment, certain aspects have to be borne in mind. The relationship of the Head of the Institution and the student is that of a parent and child, the punishment imposed should not result in any retribution or give vent to a feeling of wrath. The main purpose of punishment is to correct the fault of the student concerned by making him more alert in future and to hold out a warning to other students to be careful, so that they may not expose themselves to similar punishment and the approach is that of a parent towards an erring or misguided child. It was held that the concerned Head of the Institution must necessarily have an introspective and a rational faculty as to why lesser penalty cannot be imposed. In doing so, it should also be borne in mind that when the maximum penalty is imposed, total ruination stares one in the eye rendering such student a vagabond as being unwanted both by the parents and the educational Institution. Frustration that would result would seriously jeopardise young life. Every harsh order results in bitterness and arouses a feeling of antagonism and many a time turns a student into an anti-social element and in that way it results in more harm than good to the society. A student in the hands of Principal/Head is a child in the hands of a parent and a parent would never want the career of a child to be completely destroyed by expulsion which necessarily renders him unfit for any other career either, for no College would be willing to grant them admission to enable them to complete their studies thereby leading to such frustration and disappointment or despondency which may lead even either to suicide or turn them into anti-social elements.
22. Therefore permanently putting an end to the career of the petitioners would not be an appropriate punishment. The Karnataka High Court quotes Shakespeare in “Merchant of Venice”: “Justice should be tempered with mercy” and Jesus Christ: "They know not what they do. Forgive them."
23. In the words of George Bernard Shaw “If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and men, are not improved by injuries.” Modern penologists hold the view that punishment should not necessarily be 'retributory' and 'deterrent' but should be 'rehabilitative'. Hegel, a German Philosopher in his theory on Punishment asserts that “object of punishment is to make the criminal repent his crime, and by doing so to realize his moral character, which has been temporarily obscured by his wrong action, but which is his deepest and truest nature.” Justice Krishna Iyer in Mohammad Giasuddin Vs. State of Andhra Pradesh (1977) 3 SCC 287 emphasized “The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation.”
24. The Supreme Court in Divisional Controller N.E.K.R.T.C. Vs. H. Amaresh AIR 2006 SC 2730 and UPSRTC Vs. Vinod Kumar (2008) 1 SCC 115 has held that the punishment should always be proportionate to the gravity of the misconduct and the High Court under Article 226 gets jurisdiction to interfere with the punishment only when it finds that the punishment imposed is shockingly disproportionate to the charges proved.
25. The Supreme Court in Shailesh Jasvantbhai Vs. State of Gujarat (2006) 2 SCC 359 faced with the task of balancing of the sentences with the offences quoted Dennis Councle McGautha Vs. State of Callifornia 402 US 18, that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
26. This Court is of the view that the duty thrust upon it is to nurture the career of the petitioners and not to damage the same.
27. I have perused the contents of the FIR against the petitioners. The acts of ragging indulged in by the petitioners though traumatic to a fresher, are not found to be such so as to nip the career of the petitioners in the bud.
No comments:
Post a Comment