22 March 2016| 5:00 PM: Following what JNUTA and JNUSU believe to be the lack of transparency and discrepancies in the functioning of the HLEC set by the administration, after the dissolution of the Proctorial Committee to investigate the 9 February incident; JNUTA organized a public hearing at the azadi chowk. Earlier JNUTA had demanded to constitute a Judicial Review Committee, comprising of members of the faculty which was ignored by the administration.
The Public Panel constituted of Justice (Retd.) A. P. Shah, former CJ of the Delhi High Court and Chairman of the Twentieth Law Commission; Warisha Farasat, Delhi-based lawyer previously with the International Center for Transitional Justice, New York and Center for Equity Studies, Delhi and Dr Mrinal Satish, Associate Professor of Law, Policy and Governance at the National Law University, Delhi.
As per the notice circulated beforehand, the public hearing involved presentations by both the sides- the teachers and the university administration, on the constitution, proceedings, mechanism, and report of the HLEC. The distinguished panel then, was suppose to extend their views and opinions on the matter after having satisfied themselves on any regard, by questioning the two parties. Due to the absence of representatives from University administration, the side was represented by Prof. Sachidanand Sinha, while JNUTA was represented by Prof. Rajat Datta, Prof. G. Arunima and Dr Avinash Kumar.
The notice also mentioned the questions, which were the central concerns of the faculty members and students: First, “Can the ‘High Level’ (HLE) process initiated and conducted by the University Administration be considered a proper enquiry with reference to the established norms and procedures of the University and the objective of seeking the truth?” Second, “Did the conduct of the HL Enquiry and steps taken during it and after submission of its report uphold the principle of natural justice?” And third, “In the light of a. and b. [the first two questions] does the HLE provide any legitimate basis for taking disciplinary action against students?”
Prof. Surajit Mazumdar, introducing the speakers and the complainants, admitted that “there is some kind of disquiet and unease, discomfort about having a program like this…” among the teachers community. He further acknowledged that enquiry procedures on disciplinary matters are a part and parcel of the functioning of the university, and that their importance cannot be undermined. Under normal circumstances any enquiry process or its mechanism is not subjected to public scrutiny, which is a pact that cannot be violated, and hence there must have been “extremely compelling reasons” for the teachers to do otherwise.
He emphasized that it is important to keep in mind “the context” under which the enquiry process was undertaken and how it failed to deliver on the occasion, “the process and results” of which had far reaching, severe implications. “Especially it was a context in which there was obviously from the entire environment created…a pressure on the university to act ‘decisively’…it was precisely at such a time that the basic principles which must always be upheld during any such inquiry into the truth and administering any penalty…should have been upheld by the university; whether the university’s process has actually managed to do so or whether the process itself has fallen victim to that larger environment that was created, is really the point of issue at present…” he informed.
The implications were not limited to affecting their career and academic life, “here it was much more than that, their life, liberty, security and safety, everything was in a sense affected [by the particular process]”. The teachers were also concerned about “what this process eventually mean?” which they saw as a threat to the autonomy and the values the university stood for. He further clarified that the purpose behind inviting the administration including the VC was to present the two points of view: “conflict and contention is not the end, we are looking for a resolution, but a resolution that must uphold the principles [of the university]”.
The public hearing began with Prof. Rajat Datta stating that he will be presenting the “considered opinion of JNUTA” that “something fundamentally wrong transpired in the aftermath of the event handled by the administration”. In his presentation he focused on four aspects: the process of enquiry; the fairness and the correctness of the procedure of the enquiry; the intimidation, vilification and coercion of the students concerned; and the biases that were embedded in the enquiry process. He said these were some of the reasons why JNUTA decided “to question the legality and operational part of the HLEC”.
He enumerated a number of other points regarding the report of the HLEC like: “Why was the Proctorial committee superseded without any public notification? Why no specific terms of reference, no information about the norms, procedures, names of those considered guilty and charges were mentioned? Why was there no hearing for the students? Why the intimidation, media trials, public beating was not a part of the report? Why were student’s queries regarding the show cause notice not addressed by the committee? Why was no action taken against the Registrar who was clearly planting stories in the media, and leaking information, while also suspected of being involved in other nefarious activities? Why was JNUTA’s demand to have a more inclusive committee not properly addressed?
Prof. Datta ended his presentation by making two observations: the fact that similar incidents transpired in Jadavpur University, Kolkata, yet the VC took a resolute stand in the matter of autonomy of the university, and declared that the matters will be solved internally without succumbing to outside pressure, while the VC in JNU completely buckled under the pressure. Finally that JNU was established as a Central University, by an act of the Parliament in 1966, which gives the university the autonomy to teach, design courses, have discussions, hold events and the like; it has an internal mechanism to sort disciplinary matters, the fact that the administration was “the first to catapult” is the “biggest insult” hurled on the university.
Dr Avinash Kumar next, pointed out that given the circumstances, it was important that “justice [must] be seem to be done” which was “completely lacking in the case”. He cited the three major sources of the information in the 8-pages long report of HLEC: the complainant letter of JNUSU Joint Secretary, the deposition of the acting Registrar given on 13 March and the testimonies of the security guards and videos authenticated by the Forensics, whose report has still not been made public. Dr Kumar then showed the discrepancies and misrepresentations in the evidences cited in the report, he also gave examples to show how the committee was biased and had already termed those accused as guilty, and the deposition submitted by the acting Registrar was not only leaked into the media, most probably by him (as apart from the HLEC members and the then Registrar nobody had access to the information) and how there are major inconsistencies in the deposition submitted by him.
Prof. G. Arunima in the end, pointed out the procedural lapses in the functioning of the Proctorial committee, as well as the HLEC which replaced it: there were irregularities regarding the cancellation of the 9 February event, the 8-pages report is “a fragment” with no recommendations, the show cause notice issued and the “substantive structure and content of the report” which is mostly “generic” with no clear information provided.
The presentation by JNUTA was followed by a mock-defence on behalf of the university administration by Prof Sachidanand Sinha. He said, whatever the university did was drawn from the statutes as decided by the act of Parliament, 1966 and quoting Clause 1, he read out “All parts relating to students in discipline and disciplinary action in relation to students shall vest in the VC, the VC may delegate all or such of his/her powers as he/she deem proper, to the Chief Proctor and any such other persons…” In this regard, the constitution of the HLEC and the actions of the Chief Proctor were not a breach of the law. On perceiving the gravity of the situation, the VC on a public notice issued on 12 February condemned the use of the university platform for activities that violate the constitution and the laws of the land; it was the seriousness of the matter that made the admin assent to a police investigation; however it was assured by the police that it will interfere only “on absolute necessity” and “with prior notice”; following which he had said, the police did not enter the campus.
He further added that the administration did not interfere in the working of the HLEC and completely trusted its decisions, and till now has acted on the basis of the reports submitted by the committee. It was following the report, that the admin issued the show cause notice, which is the normal procedure. Since no recommendations were provided by the HLEC, none were given to the students concerned. The entire report cannot be made public since it is not the norm, the admin also provided ample time to the accused to come up with a defence, and it continuously asked the university community not to trust all that is shown in the media. The admin has till now responded positively to all the requests of the teachers and continues to believe that discussion is the best way to resolve the matter.
The panel went through the documents submitted by the complainants and presented their take on the issue; Justice Shah began by expressing concern on the manner in which the entire university was branded anti-national by the media. He said, in the absence of the other party a judgement cannot be passed, neither can the facts be verified or cross-checked, however he found certain developments in the enquiry process, as presented “to be troubling”. He said, the “very first requirement” of the principle of natural justice was not upheld, when the accused were not intimated with the charges held against them, also when the testimonies and evidences in support of his or her guilt were not made evident. There is an elaborate procedure provided under statute 35, with the final decision resting on the VC, he added “but when you constitute a committee which is different from the committee mentioned in the statute it is incumbent upon the authority to first explain the terms of reference…norms and procedures of the committee”.
Referring to a case of ragging at ILS in Pune, which was considered to be of certain gravity, he said, if you want to replace the existing procedures, you must bring in some independent procedures; in the former the Dean invited a retired Judge from outside to conduct the enquiry. He also said that if the students had written letters asking for the procedure, they had every right to be heard. A magisterial committee, which has called the videos forged, should have made the HLEC consider cross-checking with those guilty, and the entire report should have been made available. He concluded by saying that law should be upheld most during unprecedented times. He also mentioned that participation cannot evince punishment; it should be clarified who did what.
Dr Mrinal Satish, said the “focus of the entire process should be the constitution”: the laws should be upheld and all the rights guaranteed under the constitution to the students must be respected. He made three points; on the constitution of the HLEC he seconded the views of Justice Shah, and said instead of a new committee, a fact-finding committee could have been deployed. Secondly, on the documents sent to the students, he said they were of very intriguing nature; it should have been more clear and transparent. He also maintained that “not having cross-examination at all, in the process, is the most worrying part”. Not following the entire due process is a definite violation of natural justice, said Dr Satish.
Farasat opined that “the principle of natural justice is premised on the fact that not only should one secure justice but it should also prevent the miscarriage of justice”. They were not given enough time to contest the charges, and certainly the details were not made evident, she said. She also said that it is common sense that one should be provided with hard/soft copies of the evidence without which the accused cannot prepare his or her defence. “Personal hearing is an essential element of reasonable opportunity depending on the facts and circumstances of a particular case” she further added, “the findings are in clear violation of the norms and procedures laid out in [section 35]” referring to the manner in which the evidence was not made known beforehand to the accused.
She ended, by re-iterating these 5 points: The charges should be made known, the testimonies should be recorded in presence of the accused, allowing for cross-examination, the law concerning reason speaking order though ambiguous to a large extent maintains that there is a “reason” for the order and finally, it is all the more important “that justice must seem to be done” when there is a suspicion of biases.
JNUTA Secretary Prof Bikramaditya K. Choudhary presented the vote of thanks, adding that the teachers community were in doubts the entire time, if they are on the right footing, and on hearing the opinions of the esteemed panel it has been affirmed, that they were on the right when they chose to question the HLEC, its reports and its proceedings and demanded more clarifications on the issue.
The Informer correspondent