Calcutta High Court (Appellete Side)
Aditya Ghosh & Ors vs University Of Calcutta & Ors on 7 March, 2012
Author: Tapen Sen
Bench: Tapen Sen
IN THE HIGH COURT AT CALCUTTA
(CONSTITUTIONAL WRIT JURISDICTION)
APPELLATE SIDE
W.P. No. 22032 (W) of 2011
+
CAN 657 of 2012
+
CAN 1472 of 2012
Aditya Ghosh & Ors.
Vs.
University of Calcutta & Ors.
With
W.P. No. 3226 (W) of 2012
Pritam Adhikary & Ors.
Vs.
University of Calcutta & Ors.
With
W.P. No. 21739 (W) of 2011
+
CAN 1143 of 2012
Sitam Singha & Ors.
Vs.
The State of West Bengal & Ors.
With
W.P. No. 21691 (W) of 2011
+
CAN 622 of 2012
Avijit Ghosh & Ors.
Vs.
University of Calcutta & Ors.
CORAM : The Hon'ble Mr. Justice Tapen Sen
W.P. No. 22032 (W) of 2011
with
CAN 657 of 2012
with
CAN 1472 of 2012
For the Petitioners : Mr. Subrata Mukhopadhyay,
Mrs. Basabi Raichoudhury,
Mr. Syed Chandan Hossain,
Mr. Sabyasachi Chatterjee
Mr. Subhaya Banerjee,
Mr. Arindam Das,
Mr. Debapriya Mukherjee
For the Respondent
Nos. 3 to 5 : Mr. Jaydeep Kar,
Mr. Biswajit Konar
For the State : Mr. Ashok Banerjee, Ld. Govt. Pleader,
Mr. Subrata Talukdar, Ld. Sr. Govt. Adv.,
Mr. Saikat Chatterjee,
Mrs. Sucharita Chatterjee
Heard On : 21.12.11, 15.2.12, 21.2.12 and 1.3.12
WITH
W.P. No. 3226 (W) of 2012
For the Petitioners : Mr. Subrata Mukhopadhyay,
Mrs. Basabi Raichoudhury,
Mr. Syed Chandan Hossain,
Mr. Sabyasachi Chatterjee
Mr. Subhaya Banerjee,
Mr. Arindam Das,
Mr. Debapriya Mukherjee
For the Respondent
No. 7 : Mr. Prabal Kr. Mukherjee,
Mr. Rajat Dutta
For the Calcutta
University : Mrs. Nandini Mitra
For the State : Mr. Ashok Banerjee, Ld. Govt. Pleader,
Mr. Subrata Talukdar, Ld. Sr. Govt. Adv.,
Mr. Saikat Chatterjee,
Mrs. Sucharita Chatterjee
Heard On : 13.2.12 and 1.3.12
WITH
W.P. No. 21739 (W) of 2011
with
CAN 1143 of 2012
For the State : Mr. Ashok Banerjee, Ld. Govt. Pleader,
Mr. Subrata Talukdar, Ld. Sr. Govt. Adv.,
Mr. Saikat Chatterjee,
Mrs. Sucharita Chatterjee
For the Applicants : Mr. Billwadal Bhattacharjee
Mr. Rajdeep Majumdar
Mr. Srijit Chakraborty
Mr. Abir Ranjan Neogi
Mr. Arkaprava Sen
Heard On : 19.12.11, 22.12.11 and 1.3.12
WITH
W.P. No. 21691 (W) of 2011
with
CAN 622 of 2012
For the Petitioners : Mr. Subrata Mukhopadhyay,
Mrs. Basabi Raichoudhury,
For the College : Mr. Kishor Kr. Dutta,
Mr. Subhasis Chakraborty
For the Applicants : Mr. Billwadal Bhattacharjee
Heard On : 16.12.11, 13.2.12 and 1.3.12
C.A.V. on : 1st March, 2012
Judgment Delivered on : 7th March, 2012
Tapen Sen, J.:
In Re: W.P. No. 22032 (W) of 2011 with CAN No. 657 of 2012 with CAN No. 1472 of 2012 This Writ Petition has been filed by 15 Students of the K. K. Das College expressing their willingness to contest the students election. The College had issued an election Notice on 14.12.2011 indicating the date of the election, the date of issuance of nomination papers, the date of submission of nomination papers and the date of publication of the final list of valid candidates. According to the Petitioners, the election programme was as per the provisions of the Calcutta University Rules and Regulations.
2. It is stated in Paragraph 5 that on 19.12.2011, the Petitioners wanted to obtain nomination papers but followers of the Trinamool Congress (a Political Party) and other anti-social elements prevented them and blocked all roads leading to the College.
It has been stated that the Petitioners attempted to enter the College and contacted the College authorities over telephone but in vain. According to the Petitioners, the anti-social elements terrorized the entire locality/vicinity of the College and as such the Petitioners were unable to submit their representations to the College authorities. They have stated that even the Police authorities refused to accept the complaints of the Petitioners and, therefore, finding no other alternative, they sent their representations to the College authorities as well as to the Police through Speed Post. Their representations referred to in Paragraph 7, is Annexure P- 1 to the Writ Petition.
3. The Petitioners have stated that the situation was such that they were not even in a position to send their representations from Garia Post Office but ultimately they were able to send them through the Jadavpore Post Office.
4. They have gone on record by saying that the hooligans included followers of a rival student organization and they, in connivance with the Police and the College authorities, prevented the Petitioners and other students from attending regular classes and that no steps were taken to ensure the attendance of the Petitioners.
In Paragraph 9, the Petitioners have stated that as per Schedule, the Petitioners went to the College to obtain nomination forms for the elections scheduled to be held on 6th January, 2012 but the anti-social elements, in collusion and connivance with the College authorities as well as with the Police, "physically prevented" the Petitioners from entering into the College and "the said hooligans sponsored by the ruling Party" tortured the Petitioners. They have stated that in fact, the situation was such that no students were willing "to contest the Election other than supporters of the ruling Party who can enter the Premises of the said Colleges".
5. The Petitioners have stated that as per the law, the College was bound to ensure that a peaceful atmosphere in and around the College premises prevailed but "due to physical torture and violent situation created by the supporters of the ruling Party", no one dared to obtain nomination forms and therefore, the basic concept of democracy has been tarnished.
Based on the afore-mentioned facts and statements made in the Writ Petition, the Petitioners have submitted that unless an appropriate Order is passed by the High Court, they will suffer irreparable loss and injury and consequently, have prayed for the issuance of a Writ of Mandamus commanding upon the respondents to allow them to obtain nomination forms so that they can participate in the ensuing students' elections of the K. K. Das College. They have also prayed that a Writ of Mandamus be issued allowing the Petitioners to submit their nomination forms after re-scheduling the election programme. They have also sought for the issuance of a Writ of Mandamus upon the Authorities commanding them to restore normalcy so that the Petitioners can attend their day-to-day classes.
They have also prayed for a direction upon the authorities of the College to constitute an Election Board and refer the entire matter to the said Board for an effective decision and till such a decision is taken, there should be no elections. Alternatively, they have prayed that a Special Officer from this Court be appointed so that the election process can be held and completed under his supervision.
6. Let it be recorded that on 21.12.2011, this Court granted liberty to the respondents to file Affidavits-in-Opposition and also directed issuance of Notice upon the Respondent nos. 3 to 5. Considering the statement made in Paragraphs 5 to 8 and 10 made in the Writ Petition, this Court restrained the College from holding any students election in terms of the election Notice dated 14.12.2011 till 24.2.2012. Thereafter, the matter was listed on various dates and on 21.2.2012, a Supplementary Affidavit was filed on behalf of the Petitioners through Mr. Syed Chandan Hossain, the advocate on record, in which the Petitioners stated that a Committee had been constituted by the Ministry of Human Resources Development, Government of India in terms of an Order passed by the Hon'ble Supreme Court of India on 12.12.2005.
It was stated that the said Committee, headed by Mr. J. M. Lyngdoh, had submitted its Report making recommendations relating to students elections. It was also stated that the Hon'ble Supreme Court of India, in its Order dated 22.9.2006 passed in the case of University of Kerala vs. Councils, Members, Colleges Kerala & Ors. (SLP (c) no. 24296-24299 of 2004) had observed that the recommendations made by the said Lyngdoh Committee needed to be accepted and by way of interim measures certain recommendations were made.
The said Supplementary Affidavit was taken on record and this Court was, therefore, prima facie, shocked to notice that till date no steps had been taken for implementation of the recommendations of the Lyngdoh Committee. This Court also expressed its pain and shock to notice that on reading newspapers, it seemed that the State was reeling in educational institutions where disorder, disharmony, tension including "free for all" appeared to have become the order of the day and, therefore, this Court once again expressed a prima facie impression to the effect that in educational fields and in such matters, the State seemed to be virtually "burning". It is therefore clarified that whatever went down in the Order on 21.2.2012, was just an interim prima facie impression and it was not a final adjudication.
The matter was then directed to be listed along with other analogous matters on the 1st March, 2012 and till the 15th March, 2012, the concerned academic institutions were restrained from holding any Elections.
7. Two applications have also been filed, one being CAN No. 657 of 2012 and the other being CAN No. 1472 of 2012. So far as CAN No. 657 of 2012 is concerned, the same has been filed on behalf of the Respondent nos. 3 to 5 (the College authorities) and in which, they have prayed for vacating the interim order. However, since Mr. Joydeep Kar was allowed to make his submissions in detail on the 1st of March when all matters were heard throughout the day extensively, no individual order is being passed on the said application for vacating the interim order since the matters are all now being dealt with finally.
So far as CAN No. 1472 of 2012 is concerned, the same has been filed by one Sourav Ghosh for adding him as a party on the ground that he is a student of the said K. K. Das College. He has stated that the Writ Petition has been filed in connivance with some political parties with an ulterior motive of scuttling the students' elections. He has made a grievance that the Writ Petition was filed without even impleading him as a respondent and by suppressing relevant facts. He has stated that he has been advised to file an application for vacating the Order dated 21.12.2011. However, since for the reasons as stated above that all the Writ Petitions are now been finally heard, no separate order is passed on the said CAN Application.
In Re: W.P. No. 3226 (W) of 2012
8. The facts in this case are similar to the facts involved in W.P. No. 22032(w) of 2011. However, this case relates to the Prafulla Chandra College, Gariahat. Fourteen (14) Writ Petitioners have filed this Writ Petition with a statement that they are willing to contest the forthcoming students' election for the Session 2012-13. It is their case that the College had issued a Notice on 19.1.2012 notifying that a students' Union election would be held as per the Schedule contained therein. They have also stated that the Writ Petitioners went to the College to collect their nomination forms on 30.1.12. They were threatened by a number of outsiders who blocked the entry to the College and when efforts were made to enter into the College, they manhandled some of the Petitioners. The Petitioners lodged a Complaint being Lake P. S. Case No. 35 dated 31.1.2012 but the Police remained inactive and did not take any action. Thereafter, complaints were again lodged with the same Police Station on 1.2.2012 when they were prevented for the second time from entering into the College to obtain the nomination forms for contesting the elections.
9. They have stated that they then sent a copy of the Complaint filed before the Police to the Principal through Speed Post. They have also stated that they came to learn that the nomination forms had been issued against duplicate fees book. These Petitioners have also complained that they were forcibly prevented from entering into the College. In spite of these facts having been brought to the notice of the Lake Police Station as well as of the College Authorities, no action was taken. They also filed representations but the situation remained unchanged. In Paragraphs 21 and 22, these Petitioners have stated that "due to physical torture and violent situation created by the supporters of the ruling party", no one can dare to obtain nomination forms from the College. They have stated that they have been "prevented by the supporters of ruling party".
It is in the background of these facts and circumstances that in this Writ Petition also, similar prayers have been made for issuance of a Writ of Mandamus directing the authorities of the Prafulla Chandra College to ensure that the Petitioners can obtain nomination forms so that they can participate in the elections and that the said elections be re-scheduled.
In Re: W.P. No. 21739 (W) of 2011 with CAN No. 1143 of 2012
10. This Writ Petition has been filed by four (4) Petitioners with a similar prayer that they should be allowed to file their nomination papers in respect of the elections pertaining to the Jhargram Raj College, Paschim Medinipore.
Paragraph 2 describes them as espousing the cause of "maintaining academic discipline in the College campus" with a further qualification that they are looking after the interests of the students at large and have formed a Democratic Students Organization known as the "Baam Chatra Aikya (SFI, AISF, PSU and AISB)". Let it be recorded that the word "Baam" in Bengali means, "Left".
11. The Petitioner No. 1 is the Union Secretary of the AISF Organization in the Jhargram Raj College and the Petitioner nos. 2 to 4 are proposed candidates who wish to contest the students' election belonging to the said "Bam Chatra Aikya". According to the Petitioners, they represent 33 candidates contesting the students' election.
In Paragraphs 7 to 11 of the Writ Petition, they have stated that they could not submit their nomination papers as the College authorities remained mute spectators to acrimonious attacks and vandalism by which the Petitioners were prevented by use of physical force, to file such nomination papers. They have also stated that the Petitioners informed the District Magistrate as well as the Special Officer of Jhargram and also the Vice Chancellor, but nothing happened.
12. It is stated in Paragraph 11 that the proposed candidates were mercilessly beaten up in front of the Police compelling the candidates as well as the Petitioners to lodge Complaints before the administration and particularly, before the Superintendent of Police, Jhargram, Paschim Medinipore. However, no steps were taken. In Paragraph 13, these Petitioners have stated that the students' Organization belonging to a particular political party was allowed to file their nomination papers whereas the students' Organization of the Opposition were not allowed to file their nomination papers.
13. In CAN No. 1143 of 2012, one Soumen Acharya has prayed that he be added as a party respondent. He has stated that the Petitioners have filed the Writ Petition in collusion with some political parties with an ulterior motive of scuttling the students' election.
In Re: W.P. No. 21691 (W) of 2011 with CAN No. 622 of 2012
14. This Writ Petition has been filed by nine (9) students of the Dinobandhu Andrews College, Baishnabghata, P.O. Garia. They have also stated that they are willing to contest the forthcoming students' election on the basis of an election Notice issued on 7.12.2011. In Paragraph 5, these Petitioners have stated that the anti-social elements, in collusion and connivance with the local Police Station, physically prevented the Petitioners from entering the College premises and these "hooligans sponsored by ruling party" physically tortured the Petitioners and as such, 21 students received injuries and were admitted to hospital for treatment. They have also stated that the College authorities as well as Officers of the local Police Station were merely playing the role of silent spectators.
In the background of such facts and circumstances, these Petitioners have also prayed for an Order commanding upon the respondents to ensure that the Petitioners are able to obtain nomination forms so that they can participate in the elections after re-scheduling the same. Other prayers are more or less similar in nature.
15. CAN No. 622 of 2012 has been filed by 55 students who have their expressed desire to be added as parties to the Writ Petition as respondents. They have stated that the Petitioners have filed the Writ Petition in collusion and connivance with the political parties with an ulterior motive to scuttle the students' elections. They have, therefore, prayed that they should be added as parties.
Discussion:
16. From each of the Writ Petitions, it is crystal clear that each one of them is politically motivated. Each one has referred to the words "ruling party" and one is a member of "Bam Chatra Aikya". Each Writ Petition speaks of incidents by which the Petitioners have been prevented by so called members of the ruling party from obtaining their nomination papers. However, who were they, their names, their identities and the manner in which each one of them participated in precipitating the alleged conduct, have not even been disclosed. These therefore are questions of fact, which cannot be decided in a Writ Petition.
17. On the submission that the Lyngdoh Commission Report has not been implemented in the State of West Bengal, this Court is of the view that such a submission has been made without properly verifying the facts.
18. From the documents brought on record by Mr. Subrata Talukdar, learned Senior Government Advocate, it is evident, upon reading Annexure-E appended to therein, that in the Meeting held on 21.2.2012, a threadbare discussion on various issues starting from the "uncivilized aspects" of students' Union elections was held and remedial measures were suggested. In order to find a long term solution based on the inputs of the Lyngdoh Committee Report and other available sources, a seven (7) member Committee has already been constituted consisting of :-
(i) Prof. Suranjan Das- Vice Chancellor, Calcutta University, as its Chairman;
(ii) Prof. Ajay Ray, Vice Chancellor, BESU as its Member;
(iii) Prof. P. N. Ghosh, Vice Chancellor, J.U. as its Member;
(iv) Prof. Alok Kumar Banerjee ,Vice Chancellor, K.U. as its Member;
(v) Prof. Ranjan Chakraborty, Vice Chancellor, V.U. as its Member;
(vi) Prof. S. M. Dam, Vice Chancellor, B.U. as its Member and
(vii) Sri Subrata Ghosh, Member Secretary of the WBSCHE.
19. Now, Annexure-E referred to above reads as follows:
"West Bengal State Council of Higher Education, Kolkata With the objective of establishing a suitable and uniform regulatory framework for holding the Students' Union Elections in the different higher education institutions in West Bengal, the Hon'ble Chairman of the West Bengal State Council of Higher Education, Professor Sugata Marjit, convened a meeting of the Respected Vice Chancellors of all the State-aided universities in West Bengal on the 21st of February, 2012 at 1 pm. In total 16 Vice Chancellors attended the meeting which took place in the Meeting Room of the Council. All the attendees appreciated the timely convening of the meeting, as it gave them a lovely scope to interact with each other and get clarified on certain important points in connection with the Respected Principal Secretary (Higher Education)'s D.O. No. 11/PRS-HED/2012 dt. 19.01.2012.
It may be noted here that during the tenure of the previous government in the State, an initiative was taken by the W.B. State Council of Higher Education to streamline the Students' Union Elections, but due to the lack of proper follow-up implementational/executional steps that initiative did not bear fruit.
In the meeting held on the 21st of this month, there were thread-bare discussions on various issues starting from the uncivilized aspects of the present-day Students' Union Elections to their casual mechanisms and remedial measures. To find a long-term solution to the problem, based on inputs to be drawn from the Lyngdoh Committee Report and other available sources and experiences, the Hon'ble Chairman constituted a 7-member Committee.
1. Prof. Suranjan Das (VC, CU)-Chairman
2. Prof. Ajoy Ray (VC, BESU)-Member
3. Prof. P. N. Ghosh (VC, JU)-Member
4. Prof. Alok Kumar Banerjee (VC, KU)-Member
5. Prof. Ranjan Chakraborty (VC, VU)-Member
6. Dr. S. M. Dan (VC, BU)-Member
7. Sri Subrata Ghosh (MS, WBSCHE)-Member-Secretary The Committee, whenever/wherever necessary, will get feedback from all the other Vice Chancellors and relevant group(s) of stake-holders, before finalizing its report which is to be submitted to the Hon'ble Chairman of the Council by end-April, 2012. It would be really wonderful if in the process of this exercise, a uniform academic calendar emerges which can be followed by all the universities in the State.
Sd/-
(Sri Subrata Ghosh) Member-Secretary, WBSCHE C.C. to :
1.The Principal Secretary, Higher Education, Govt. of West Bengal.
2.All the Vice Chancellors of State-aided Universities in West Bengal.
3.PS to the Hon'ble MIC, Higher Education, Govt. of West Bengal."
20. Apart from the above letter, this court notices that there is yet another letter dated 19.1.2012 written by Sri S. C. Tewari, IAS, Principal Secretary to the Department of Higher Education, Government of West Bengal and addressed to all Vice Chancellors. The relevant portion of the said letter which is marked Annexure-B to the bunch of documents filed by the learned Senior Government Advocate reads as follows:
"D.O. No. 11/PRS-HED/2012 Dated 19th January, 2012
Dear
You may be aware of the Media reports about disturbance in some of the colleges in connection with holding of the Students' Election. Such elections are held as per regulatory framework laid down in the Statute/Ordinance/Regulations of the universities. It is felt that such regulatory framework needs to be revised to align it with the order of the Hon'ble Supreme Court of India issued on 22nd September, 2006 wherein Hon'ble Supreme Court has directed that the recommendations of the committee under Shri J. M. Lyngdoh be implemented. It is requested that your University may kindly take necessary action in this regard so that the consequent modified regulatory framework is ready by June 2012 so that the Students' Election in the next academic year (2012-13) can be held as per such modified framework. If it is felt by the University that assistance of West Bengal State Council of Higher Education is needed in preparing/modifying such framework, the Council may be approached with suitable proposal.
It will be appreciated if a feedback is provided on the status obtaining in your University.
Yours sincerely, Sd/- (S. C. Tewary)
21. Consequently, the submissions made by Mr. Subrata Mukhopadhyay, learned advocate to the effect that the orders of the Supreme Court have not been complied with, is of not much substance because steps have already been taken, as per Annexure-E referred to above for purposes of taking steps for finding out a long term solution to the "uncivilized" aspects of students' Union elections based on the inputs to be drawn from the Lyngdoh Committee Recommendations. The judgments cited by the learned counsel in support of the aforementioned contention are (1) University of Kerala (1) vs. Council, Principals', Colleges, Kerala & Ors. reported in (2006) 8 SCC 304; (2) University of Kerala vs. Council, Principals, Colleges, Kerala & Ors. reported in (2009) 17 SCC 753; and (3) University of Kerala vs. Council of Principals of Colleges, Kerala & Ors. reported in (2010) 1 SCC 353.
22. In the Ist case referred to above, being the University of Kerala (1) vs. Council, Principals', Colleges, Kerala & Ors. reported in (2006) 8 SCC 304, the Hon'ble Supreme Court, while perusing the report submitted by the Lyngdoh Committee which was constituted by the Ministry of Human Resources Development, Government of India in terms of an earlier order of Supreme Court passed on 12.12.2005, was prima facie of the view that the Recommendations of the said Committee needed acceptance and as an interim measure, directed some of those Recommendations to be implemented. The Recommendations have been mentioned in Paragraph 3 of the said judgment and various issues have been mentioned including maintaining law and order on the campus during the election process. Paragraph 7 of the said judgment lays down that the suggestions given by Mr. Gopal Subramanium, the then learned Additional Solicitor General to provide security to the academic community be implemented as and when necessary. Their Lordships further made it clear in Paragraph 7 that the recommendations made shall be followed in all College/University elections until further orders.
23. Let it be recorded that the earlier order dated 12.12.2005 referred to in the said judgment being (2006) 8 SCC 304 was the order which has been reported in (2009) 17 SCC 753. This was the 2nd case cited by the learned Counsel.
In this case, their Lordships appointed Mr. J. M. Lyngdoh, Retired Chief Election Commissioner as a Member of the said Committee along with otherts.
24. When the matter came up for final hearing, before another Division Bench of the Hon'ble Supreme Court, a question arose as to the validity of the interim order reported in (2006) 8 SCC 304. Consequently, their Lordships framed six (6) questions and referred the matter to a Constitution Bench of the Apex Court, to be nominated by Hon'ble the Chief Justice of India. It is stated at the Bar that the Constitution Bench has not yet been constituted.
Be that as it may, the six (6) questions framed are as follows:
"1. Whether the Court by an interim order dated 22.9.2006 can validly direct implementation of the Lyngdoh Committee's Report;
2. Whether the order dated 22.9.2006 really amounts to judicial legislation;
3. Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limit of judicial legislation. Will judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution;
4. Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or it can only make a recommendation to the legislature or authority concerned in this connection;
5. Whether Article 19(1)(c) and other fundamental rights are being violated when restrictions are being placed by the implementation of the Lyngdoh Committee Report without authority of law; and
6. What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the State."
25. Having so observed and having framed these questions, Hon'ble Mr. Justice Katju, as his Lordship then was, was of the opinion that these questions were of great constitutional importance and hence they required "careful" consideration by a Constitution Bench of the Supreme Court.
Hon'ble Mr. Justice A. K. Ganguli, as his Lordship then was, however, while agreeing that the questions formulated by the other Hon'ble Judge, should be referred to the Constitution Bench for an authoritative pronouncement, nevertheless added his own perceptions on those questions which, according to him might be "a shade at a variance" with the Hon'ble Mr. Justice Katju. His Lordship observed that the relevance of those questions was perennial and they were bound to figure in various decisions in various situations and, therefore, while making an authoritative pronouncement on those questions, he observed that the Constitution Bench may consider his views also.
His Lordship, while dealing with the rationale of the doctrine of separation of powers, observed that such a doctrine was to uphold individual liberty and rule of law because vesting of all power in one authority promotes tyranny.
At this juncture, it would be relevant to notice the observations of Hon'ble Mr. Justice Katju made in paragraph 15 of the said judgment where, while referring to Vishaka vs. State of Rajasthan [(1997) 6 SCC 241], his Lordship wondered as to whether a Court can convert itself into an interim Parliament and make law until Parliament makes a law on the subject?
Hon'ble Mr. Justice Ganguli, while dealing with the doctrine of separation of powers, observed that this doctrine is associated with the French Philosopher, Montesquieu but the origin of the principle has to be traced back to Aristotle who had opined that a Government should be composed of three organs, namely, "the deliberative" (i.e. legislative), the magisterial (i.e. Executive) and the judicial. It was observed that the scope of the doctrine was not worked out fully until Locke and Montesquieu had elaborated this concept further in the 18th Century. Following the principles of John Locke, James Madison wrote in the Federalist Papers that "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self- appointed, or elective, may justly be pronounced the very definition of tyranny".
In Paragraphs 24 and 25, Justice Ganguli observed that in our constitutional framework, and unlike the U.S. Constitution, no defined and express incorporation of the doctrine of separation of powers has been provided save and except that the executive power of the Union is vested in the President of India under Article 53(1) of Constitution of India. Similarly, the executive power of the State is vested in the Governor under Article 154(1) but so far as legislative and judicial powers are concerned, these are not vested on any authority but, under Article 50, one of the Directive Principles of State Policy, the State is to take steps to separate the judiciary from the executive in the public services of the State but this has got nothing to do with the vesting of power.
The aforementioned questions which are of paramount importance have been left to be decided by a Constitution Bench of the Hon'ble Supreme Court of India and unless an authoritative pronouncement is made on these issues, it would not be proper for this court to issue a Writ of Mandamus directing the State to implement the Recommendations made in the Report of the Lyngdoh Committee.
26. Moreover, this Court cannot help but express its opinion that the overall texture of the cases at hand are intra students' rivalry based on political considerations. This would be evident from the various statements made in the Writ Petitions and which have been recorded above. Such intra students' rivalry cannot be a subject matter of Writ Petitions under Article 226 of the Constitution of India. Moreover, if the grievance of the Petitioners is that no action has been taken by the Police even after filing of Complaints, then their remedy lies by way of moving the appropriate Criminal Court having jurisdiction but for such grievances, a Writ Petition would not lie.
27. Moreover, this court, on 11.1.2012, has already held in the case of Mr. Dibyendu Modak and Anr. Vs. State of West Bengal & Ors. [WP No. 365 (w) of 2012], that the claim of the Petitioners flows from a non-statutory document being the Constitution of the Students' Federation. Another Hon'ble Single Judge in the case of Himadri Sekhar Biswas & Ors. vs. Behala College & Ors. reported in 2005 (4) CHN 68 has held that actions taken to fulfill an obligation cast on the basis of a non-statutory document cannot be held to be an action which may be described as a public function or in the discharge of any public duty and therefore, a Writ Petition was not accepted to be maintainable.
28. This court would go a step further. While following the aforesaid judgment passed in the case of Himadri Sekhar Biswas, this court would further like to state that there may be some Colleges where elections are held on the basis of University Regulations and therefore, these elections can be said to be held under a statutory document but even then, a Writ Petition emanating out of such students' election will not be maintainable under Article 226 of the Constitution of India because whatever the results of the elections are or whatever procedure may be followed in these elections, whether they be statutory or non-statutory, the ultimate outcome of the same concerns only the students of that particular institution/college and such an outcome cannot be said to have any nexus or any connection in either the domain of public law or in the domain where the public at large can be said to be affected. These elections, at best, serve the own interest of the College and/or the students and/or the University but they do not affect public life. Consequently, a Writ Petition in such educational institution election matters would not be maintainable even if an election is held under any rule or regulation of any University.
29. In view of the aforementioned facts and circumstances, the Writ Petitions are not maintainable.
Now, readverting to the Case before the Supreme Court reported in (2006) 8 SCC 304, Justice A. K. Ganguli, as his Lordship then was, while giving his own views and credence to judicial intervention, observed that such intervention was necessary wherever/whenever there were gaps in legislation. In the instant case, a proper guideline is yet to be framed but in the meantime, can our children, who are College/University students suffer? The answer would be no compelling the Court to interfere only to the extents indicated hereinafter.
It is in this context that this Court cannot ignore the observations made by the Member Secretary, West Bengal State Council of Higher Education which has been quoted above vide Annexure-E and the other letter dated 19.1.2012 (Annexure-B) written by the Principal Secretary quoted above. These documents are such that the prima facie impression of this Court as indicated in the Order dated 22.2.2012 stands corroborated to the extent that there were instances of violence on the dates of the elections of the students' bodies and there were reports in the media as well reporting of such instances and in spite of some Police deployment here and there, the situation did not improve.
This Court, dealing with Group-II determination pertaining to educational institutions like Colleges, Universities and libraries will therefore, certainly have the jurisdiction to frown upon any adverse situation prevailing in these areas lest it be said that even the High Court remained a mute spectator.
It is under these circumstances that this Court suo motu takes judicial notice of these documents produced by the State themselves and comes to the conclusion that judicial intervention to the extent indicated hereinafter becomes necessary because the High Court is the guardian and protector of the Constitution and Constitutional rights. Article 19 is a right guaranteed under the Constitution and such a right must be exercised freely, fairly, without fear, threat, coercion or violence.
30. Therefore, before parting with this case, this court would like to state that Annexures-E & B referred and quoted above are factors that go to show that the West Bengal State Council of Higher Education is concerned with the situations at hand and therefore, they have proceeded to constitute a seven (7) Member Committee referred to above. This court will, therefore, only request the said Council/Committee to give their Report as early as possible and once such a Report is submitted, a useful guidelines be framed under which such students' elections can be held by the Universities/Colleges in the State.
31. However, till such time a set of adequate guidelines are framed and considering the observations made in Annexures-E & B quoted as well as the observations made above, this court directs that all elections to be held in Colleges be held under the strict and close supervision of the Chief Electoral Officer, West Bengal, who will be in charge of these elections and would be entitled to seek the assistance of the Director General of Police, Government of West Bengal for providing all help so that the elections are conducted in a peaceful and fair manner. The DGP will render all cooperation to the Chief Electoral Officer whenever he so desires and on each day of the elections, he will ensure adequate deployment of Police force in the area in question so that no untoward incident occurs. The dates and the programme of the election schedule shall be set out by the Chief Electoral Officer and the College authorities must render complete and total support to him. In the event, the Chief Electoral Officer finds that there is any violence or breach of discipline or want of cooperation, he will be free to re-schedule the elections or to take such other step or steps as may be permissible in law and as may be required.
32. While parting, this Court would also take a moment to advise the students Bodies to concentrate more on their studies and to refrain from identifying themselves with any particular organization because in their prime youth, they are supposed to study and become responsible future generations of our country. They may contest elections but such elections should be purely students' elections and should be used as a shield to protect their academic interests but not as a sword to destroy it.
With the aforesaid observations and directions, all these Writ Petitions are Dismissed. The interim order of stay granted earlier will now be deemed to have been vacated but elections shall be held strictly in the manner indicated as above. This Judgment shall have prospective effect and it shall not upset the elections that have already been held.
As a consequence of the main Writ Petitions being dismissed, the Applications will be deemed to have been Disposed of.
Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, may be given/issued expeditiously subject to usual terms and conditions.
Subject to an application for certified copy being made and proof in support thereof being produced, let a plain photocopy of this Order, duly countersigned by the Assistant Registrar (Court), be handed over to the parties.
(TAPEN SEN, J.) .............March, 2012 A.N. A.F.R./N.A.F.R.