Malavika Babu v. University of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **THURSDAY, THE 28TH DAY OF JUNE 2018 / 7TH ASHADHA, 1940 WP(C).No. 16906 of 2018** ## **PETITIONER(S)** **------------** **1. MALAVIKA BABU, D/O. BABU, 20 YEARS, SAJEELA NIVAS, PARIPALLY, KALLUVATHUKKAL, VARKALA, KOLLAM .** **2. VYSHAK, 21 YEARS, S/O. VIJAYAKUMAR, KUNNUVILA PUTHEN VEEDU, MUTTARA P.O., ODANAVATTOM, KOTTARKAA, KOLLAM.** **BY ADV.SRI.SYAM J SAM** ## **RESPONDENT(S):** - **-------------** **1. VICE CHANCELLOR(IN CHARGE), UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS, PALAYAM ,THIRUVANANTHAPURAM- 695 034.** ## **2. SECRETARY,** **MUSLIM EDUCATIONAL TRUST FOR COSTAL AREA (METCA) TRUST, CHMM COLLEGE FOR ADVANCED STUDIES, METCA LAND, CHAVARCODE PALAYAMKUNNU P.O., VARKALA, TRIVANDRUM- 695 146.** **3. PRINCIPAL, CHMM COLLEGE FOR ADVANCED STUDIES, METCA LAND, CHAVARCODE PALAYAMKUNNU P.O., VARKALA,TRIVANDRUM- 695 146.** **R1 BY ADV. SRI.THOMAS ABRAHAM, SC R2 & R3 BY ADV. SRI.M.DINESH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **WP(C).No. 16906 of 2018 (K)** ## **--------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXT.P1 TRUE COPY OF THE ID PROOF ISSUED BY THE SECOND RESPONDENT TO THE FIRST PETITIONER EXT.P2 TRUE COPY OF THE COURSE CERTIFICATE ISSUED BY THE SECOND RESPONDENT TO THE SECOND PETITIONER EXT.P3 THE TRUE COPY OF THE MARRIAGE CERTIFICATE OF THE PETITIONERS EXT.P4 THE TRUE COPY OF THE APPLICATION FORM FOR READMISSION EXT.P5 THE TRUE COPY OF THE DECLARATION SWORN BY THE MOTHER OF FIRST PETITIONER. RESPONDENT(S)' EXHIBITS ----------------------EXT R3 (A) A TRUE COPY OF THE GENERAL RULES OF THE 2ND RESPONDENT COLLEGE EXT P3 (B) A TRUE COPY OF THE WRITTEN REQUEST OF THE 1ST PETITIONER EXT R3 (C) A TRUE COPY OF THE REPORT OF THE HEAD OF THE DEPARTMENT. /TRUE COPY/ PS TO JUDGE** **TS 20.07.2018** “C.R.” A.MUHAMED MUSTAQUE, J. ========================= W.P.(C).No.16906/2018 ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28[th] day of June, 2018 ## J U D G M E N T Love is blind and an innate humane instinct. It is all about individuals and their freedom. "Is love a freedom or fetter" is the question that is raised in this writ petition in the context of imposition of academic discipline. 2. The first petitioner a girl student, who joined BBA course during the academic year 2016-17, fell in love with the 2nd petitioner, a senior student of the same course in the College. The College authorities, as well as their parents, objected to their affair. Finding barriers placed on their affair, the first petitioner eloped with the 2nd petitioner. A man missing complaint was lodged by the 1st petitioner's mother. The first petitioner was produced before the Magistrate. She was set at liberty as she was not wrongfully detained. The parents of the 1st petitioner ``` WPC 16906/2018 ``` ## **-:2:-** retracted from opposition to their affair and stood by her to court a marriage. Now the petitioners are husband and wife. The ordeal remains with them, is the approach of the College authorities. The College authorities, finding that such acts on the part of the petitioners amount to gross indiscipline, decided to expel the petitioners from the college. 3. The 1st petitioner wants to continue the BBA programme in the College and the 2nd petitioner wants to discontinue the course and only seeks for return of his academic records retained by the College. 4. In the matters of academic discipline, the Head of the Institution is empowered to maintain such discipline. In such scenario, the only question that is left to ponder with this Court is whether the College is justified in finding a love affair that resulted in marriage as a misconduct, breaching discipline of the institution. 5. What amounts to academic discipline and indiscipline, it is not for the Court to decide. ``` WPC 16906/2018 ``` ## **-:3:-** Enquiry of the Court is not on the decision, but only to consider whether the action pursue a legitimate aim? Every authority vested with power has the duty to discharge such power for the legitimate aim for which such power is conferred upon them. A measure must be necessary to achieve the aims. It cannot be used as a weapon to impose personal moral values of persons managing the affairs of the College upon their students. What defines anomie for some, may be illogical for others. The right of management to administer an educational institution would also include the power to impose discipline among the pupil to secure the objective standards of education. But, that does not mean that the authority can assume the role to impose moral paternalism upon students notwithstanding their disagreement to such values of the authority. The campus of the educational institution must be a place of neutral value leaving moral choice left to the discretion of students to uphold freedom of latter and to overcome personal biases. The love affair and ``` WPC 16906/2018 ``` ## **-:4:-** eloping termed as immoral amounting to a breach of discipline was based on the moral values of the persons in the management. It is a sin for some and not a sin for others. In law, it is the choice of freedom which is the essence of liberty. 6. The role of Court is not to endorse moral choices of College authorities or students, but to recognize the freedom to have a choice. What concerns the Court is whether the action has any nexus with the object for which such power is conferred. 7. The right to privacy is an element of human dignity which includes the right to make an essential choice which would affect their course of life as declared by Hon'ble Supreme Court in K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1]. One to have an affair or not to have an affair with another is a personal choice, and such choice is fundamental to the liberty guaranteed under the Constitution. Choosing a life partner or choosing a way of life is the discretion based on individual autonomy. Except with legislative essentials (legal ``` WPC 16906/2018 ``` ## **-:5:-** paternalism), no regulation can be made to regulate the behavior of men on moral values. Legal paternalism is a control or regulation of behavior through legislation on a larger interest of the society. This is how certain penal provisions are made to regulate human behavior on obscenity, adultery etc. Rest of matter regulating moral paternalism must be relatable to the power that is conferred upon the authority. When there are competing interests referable to the rights and fundamental rights of a person involved, the test that should be applied is a dominant interest test. Dominant interest test refers to the application of interest of a dominant in the context. That means rights and fundamental rights of students must be subservient to the power of the College authorities so far as it relates to discipline. The power of dominant to deny or regulate the fundamental right of others must relatable to secure legitimate aim of such power. In legal conception, a power is an affirmative control over a given relation. One has no power to alter rights of others except in legal ``` WPC 16906/2018 ``` ## **-:6:-** relations. Moral choice based on the individual autonomy of a student cannot be altered by a college except in the course of the legal relationship. 8. In this case, except bald allegations that petitioners were found engrossed in an intimate relationship in the campus, there are absolutely no records or materials or evidence relied on to arrive at such finding. How and what manner love affair and eloping have impacted the academic disciple, is a matter to be explained by the College authorities. Absolutely there is nothing on record to justify that power was exercised for the aim which was conferred upon the College authorities. It is apparent that personal moral values of the College authorities in the garb of academic discipline had been attempted to be imposed on the petitioners forgetting the fact that such values would invade personal autonomy of such students. The course of personal life and choice of partners are left to the individual ``` WPC 16906/2018 ``` ## **-:7:-** autonomy,that is the essence of the right to privacy. So declared in Puttaswamy's case (supra). 9. This Court had in an occasion considered a similar case of a girl student, who had eloped with a boy student and the College authorities took a disciplinary action expelling them in WP(C) 17243/2016. This Court observing that it was not a case of mere love affair, but two students taking a drastic step of eloping and living together without even contracting a marriage which amounts to indiscipline and this court did not interfere with the decision of the College authorities. I am not able to follow the judgment of a Co-ordinate Bench for the simple reason that the judgment had rendered without adverting to the fundamental right of right to privacy. In view of the declaration of the right to privacy on a fundamental right in Puttaswamy's case, the judgment as above lost its significance as binding precedent. The competing rights will have to be weighed in the context of an action complained and the College authorities must establish the power ``` WPC 16906/2018 ``` ## **-:8:-** was exercised for the purpose for which such power was conferred on them. 10. As adverted above, the College authorities failed to understand the intimate personal relationship is the matter of privacy of individuals upon which it has no authority to interfere. In the absence of evidence, that it had affected the classes conducted by the College or the congenial environment for learning, no action can be taken on the ground of indiscipline. 11. In the result, the following directions are issued: a. The University is directed to readmit the 1st petitioner within two weeks from the date of receipt of a copy of this judgment based on the application made by the 1st petitioner. b. The College authorities are directed to permit the 1st petitioner to continue the course in accordance with the University regulations. c. The University shall condone the delay in attendance in accordance with the regulations and ``` WPC 16906/2018 ``` ## **-:9:-** shall condone the absence within the limit of regulations. d. The College authorities are directed to return the records of the 2nd petitioner forthwith. With the above directions, the writ petition is disposed of. Sd/- ## A.MUHAMED MUSTAQUE, JUDGE cl