IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION IA NO. IN SUO MOTU CONTEMPT [CIVIL] NO.

231 OF 2008 IN CIVIL APPEAL NO. 887 OF 2009 IN THE MATTER OF: University of Kerala Versus Council of Principals of Colleges & Ors. AND IN THE MATTER OF: The Jawaharlal Nehru University Through its Registrar New Mehrauli Road, New Delhi-110067 And The Jawaharlal Nehru University Students Union Through its General Secretary New Mehrauli Road, New Delhi-110067 Respondents Respondents ...Petitioner OF 2011

PAPER BOOK [FOR INDEX KINDLY SEE INSIDE] MR. GOPAL SUBRAMANIUM AMICUS CURIAE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION IA NO. IN SUO MOTU CONTEMPT (C) NO. 231 OF 2008 IN CIVIL APPEAL NO. 887 OF 2009 IN THE MATTER OF; University of Kerala Versus Council of Principals of Colleges & Ors. AND IN THE MATTER OF: The Jawaharlal Nehru University And The Jawaharlal Nehru University Students Union ...Respondents APPLICATION FOR DIRECTIONS ON BEHALF OF THE AMICUS CURIAE IN SUO MOTU CONTEMPT (C) NO. 231 OF 2008 IN CIVIL APPEAL NO. 887 OF 2009 Respectfully sheweth:
1.

OF 2011

Petitioner ...Respondents

This application is with reference to certain relaxations sought by the Jawaharlal Nehru University's Students Union (hereinafter referred to as the JNUSU") to the recommendations of the Lyngdoh Committee (hereinafter referred to as the Committee") in the conduct of student elections in the Jawaharlal Nehru University (hereinafter referred to as the JNU). A copy of the report by the Committee is annexed as Annexure A. A brief set of facts of the case are as follows:

2.

In the year 2004, the University of Kerala approached this Honble Court by way of a Special Leave Petition against an order of the Honble Kerala High Court in a set of writ petitions filed by the Council of Principals of colleges affiliated to the University of Kerala. In the impugned order, the Honble High Court had stated that the set of rules decided upon by the University of Kerala Syndicate for

conducting Students Union Elections, would not be binding upon the colleges affiliated to it.
3.

The matter first came up for hearing before a bench comprising their lordships Justice Arijit Pasayat and Justice S.H.Kapadia in the Honble Supreme Court of India. Having heard the parties, and in conclusion to their submissions, the Council of Principals placed a list of suggestions to improve the prevailing system of student elections in Kerala for the consideration of the Honble Court. Consequently, in view of the suggestions submitted by the council of principals, this Honble Court, vide its order dated December 12, 2005, directed the Ministry of Human Resource Development, Govt. of India, to form a Committee to look into the matter and frame guidelines on students union elections in colleges and universities across the country. A copy of the order dated December 12, 2005 is annexed as Annexure B.

4.

The Ministry of Human Resource Development accordingly constituted a committee under the Chairmanship of Shri J.M.Lyndoh, Former Chief Election Commissioner of India, comprised of six members with Prof. Dayanand Dongaonkar, the then Secretary General, Association of Indian Universities, as the convenor. Elections to Students' Unions in universities and colleges throughout India were conducted differently. It was therefore the Committees mandate to suggest guidelines and make recommendations on aspects that are required to be observed to maintain academic atmosphere in the educational institutions with stress on indiscipline and divisions on the basis of political beliefs and such other such avoidable considerations.

5.

Hence, in view of the orders of the Honble Supreme Court, the terms of reference for the Lyngdoh Committee were broadly as under: i. ii. Criminalisation in student elections. Financial transparency and limits of expenditure in the conduct of such elections (such as ceilings on election-related expenditure, indication of the details and sources of such expenditure, the filing of

returns by students unions in respect of their transactions and the scrutiny of such returns); iii. Eligibility criteria for candidates seeking to contest such elections (such as maximum age limits for candidates and minimum standards of educational performance attained by candidates); and
iv.

The institution of a forum to address grievances and disputes arising out of students elections as regards procedural fairness, eligibility of candidates and/or the non-observance of norms during the conduct of student elections.

The committee was requested, by the Honble Court, to submit its report within a period of four months from the date of notification of its constitution i.e. by May 2006.
6.

With a view to carry out its mandate, the Committee held a number of regional meetings and public discussions across the country. It collected data from interested parties and invited opinions and suggestions from the general public after which all the data received was thoroughly scrutinised. After a rigorous analysis of the data, the Committee made its recommendations on various aspects of students union elections. In this regard, the Committee drew inspiration from the existing election models of some Universities, the JNU being one of them. It is pertinent to mention however, that these recommendations, although extremely detailed, are of a general nature and are not specific to any one kind of institution.

7.

On May 23, 2006, the Committee submitted its report to the Ministry of Human Resource Development, Govt. Of India. Thereafter a bench comprising their lordships, Honble Justice Arijit Pasayat and Honble Justice L.S. Panta, vide order dated September 22, 2006, directed that the primary recommendations of the Committees report be implemented by all institutions of higher education across the country with immediate effect. This Honble Court in its order also made it clear that even though the Committees recommendations were to be implemented in their entirety as an interim measure, the same would be in force

until further orders of this Honble Court, and would therefore be implemented in respect of all college/university elections until further orders. A copy of the order dated September 22, 2006 is annexed as Annexure C.
8.

Pursuant to the aforementioned direction, the recommendations of the Committee have been implemented by colleges and universities across the country.

9.

In the years 2006 and 2007, despite the orders of this Honble Court, the JNUSU conducted elections in violation of the Committees recommendations. This fact was brought to the notice of a bench of this Honble Court comprising of their lordships Honble Justice Arijit Pasayat and Honble Justice Mukundukam Sharma, by the Amicus Curae vide IA No. 12 of 2008 in the present Civil Appeal, seeking suspension of the 2008-09 elections of the JNUSU and the initiation of contempt proceedings against the JNU administration for violation of this Honble Courts order dated September 22, 2006.

10. Consequently, this Honble Court, vide its order dated October 24, 2008 observed

that there was a prima facie violation of the order dated September 22, 2006, in as much as JNUSU appeared to be conducting its elections in contravention of some of the recommendations made by the Committee. This Honble Court was pleased to stay the 2008-09 JNUSU elections, and was further pleased to issue notices of contempt to the Registrar and Vice-Chancellor of the JNU. It is pertinent to note that the stay order by this Honble Court did not affect the conduct of any elections in accordance with the recommendations of the Lyngdoh Committee. The elections of the JNUSU have, however, been held in abeyance since. A copy of the order dated October 24, 2008 is annexed as Annexure D.
11. Pursuant to the directions of this Honble Court, staying the conduct of any

student elections at the JNU, in violation of the Committees recommendations, the JNUSU filed its response to the interim application by the Amicus, seeking certain exemptions and relaxations to the report of the Committee. The JNUSU based their request on the fact that the Committee had itself praised the election model of the JNU and had based many of its own recommendations on the same.

The suggestions made by the JNUSU were consequently gone into by the Amicus Curae who found some merit in the aspirations of the JNUSU and accordingly placed his views on the matter before this Honble Court. The Amicus also found that the JNU administration had very little to do with the conduct of JNUSU elections and its role was limited to informing the students and the JNUSU of the Committees recommendations as per the order of this Honble Court dated September 22, 2006, which, as per the submissions made by the Vice Chancellor and the Registrar of the University, were carried out. Accordingly on May 3, 2010, when IA Number 22/2010 came up for hearing before this Honble Court, the Amicus having gone through the entire list of relaxations sought by the JNUSU, suggested the following: i. The Maximum Age Limit for M Phil/Ph D candidates be extended from 28 years to 30 years and no further. ii. A candidate may be given three opportunities to contest for the posts of office-bearer and executive council combined, provided he/she does not contest on any one post more than twice. This exercise did not, however, bear fruit as the JNUSU chose to suspend their elections rather than conduct the same with the limited relaxations suggested by the Amicus.
12. Soon thereafter the matter was transferred to a bench of the Honble Supreme

Court of India comprising Justice Markanday Katju and Justice A K Ganguly. On November 30, 2009 the matter was referred to a Constitution Bench to determine whether the Honble Supreme Courts earlier order dated September 22, 2006, for conduct of students union elections as per Lyngdoh Committee recommendations, was tantamount to Judicial Legislation and therefore ought to be relooked at. The Constitution bench has not been convened till date.
13. In May, 2010, the JNUSU filed an Application seeking vacation of the

aforementioned stay order dated October 24, 2008. The Application came up for admission on May 3, 2010, before a bench comprising their Lordships the Chief

Justice of India, Justice Deepak Verma and Justice B S Chauhan who directed that the matter be listed in July, 2010. The application has since not been listed.
14. In view of the fact that no student elections have been held in the JNU since the

year 2007, in the year 2010, The JNUSU and members of the faculty and administration of the JNU approached the Amicus with a request to reconsider their application for relaxations. The JNUSU, members of the faculty and the staff also expressed their concern on the absence of an elected JNUSU since 2008. It was further brought to the notice of the Amicus that the vacuum due to absence of a democratically elected JNUSU has had a detrimental impact on the overall atmosphere of the university in this period and that these reasons warranted a fresh look at the application for relaxations. Following this, the Amicus discussed the matter with some members of the faculty and administration of the JNU and representatives of JNU students and arrived at the conclusion that some of the contentions of the JNUSU warranted consideration.
15. It is submitted that in the course of discussions with the various parties involved,

the Amicus also took the views of a dissident group amongst the JNU student body, namely the Youth for Equality who approached the Amicus with certain concerns regarding relaxations to the Lyngdoh Model for the conduct of students union elections in JNU. It was their contention that the JNU ought not to be treated as a special case and that any relaxations granted to the JNU must also be extended to other institutions across the country. They pointed out that several other colleges had adopted the Lyngdoh model under directions from this Honble Court and had witnessed a marked improvement in the standard of elections. They were of the opinion that the Lyngdoh model could be applied to the JNU just as it had been to other institutions in the country and that no case for special treatment was made out by the JNU.
16. In view of the aforementioned facts and before delving into the specific

relaxations sought by the JNU, it is pertinent to mention some of the findings and comments made by the Lyngdoh Committee in reference to the unique election model of the JNU. The Committee, while considering various election models mentions the election model of the JNU favourably and alludes, on Page 42 of its

report, to the "highly structured and regulated system of direct elections, where the entire election process was supervised by an election committee comprising of students."
17. The report, however, goes on to mention why the JNU model cannot be adopted

as a standard model for other universities because the JNU/University of Hyderabad mode of elections, where direct elections are held in a peaceful manner and are conducted entirely by the students, where election-related expenditure is kept to a relative minimum due to strict norms on the use of posters and election propaganda, has a major drawback inasmuch as this form of election is suitable only for small universities of the single campus type.
18. Regarding the mode of conducting elections, the committee stated that "There

also arose the question of the wishes of the various stakeholders in respect of the mode of elections. Many members of the faculty and the administration (in particular of the privately funded colleges) felt that there was no need for elections at all, whereas others wavered between indirect and direct elections. The various student organizations unanimously demanded direct elections. Individual students wavered between no Report of the Committee Constituted by Ministry of Human Resource Development, Government of India as per the Direction of the Honble Supreme Court of India to frame Guidelines on students Election in Colleges/Universities. The general consensus was that the model to be followed was the JNU model, which, however, in the Committees opinion is not suitable for very large universities."
19. Consequently the report goes on to state that while the JNU model may not be

appropriate for larger universities with several campuses a system of direct election of the office-bearers to the student body whereby all students of all constituent colleges, as well as students of the university departments vote directly for the office-bearers. This model may be followed in smaller universities with well defined single campuses (for e.g. JNU/University of Hyderabad) and with a relatively smaller student population. (Page No 43, Para-3, Clause 6.2.1)

20. In view of the aforesaid and the aspirations of a majority of the JNU faculty,

administration and student body, it is submitted that the following relaxations to the Committees recommendations may be considered as an interim measure:
i.

Time Period for elections: The Committee, vide Recommendation Nos. 6.4.1 and 6.4.2 has prescribed a time-frame within which to conduct student elections (between 6-8 weeks from the date of commencement of the academic session, over a maximum period of 10 days). Recommendations 6.4.2 and 6.4.2 state as follows: 6.4.1 It is recommended that the entire process of elections, commencing from the date of filing of nomination papers to the date of declaration of results, including the campaign period, should not exceed 10 days. 6.4.2 It is further recommended that elections be held on a yearly basis and that the same should be held between 6 to 8 weeks from the date of commencement of the academic session. It is submitted that this time-frame was recommended by the Committee after examining the various academic schedules being followed across the country. The JNUSU, however seeks a relaxation of about 4 weeks beyond the 6-8 weeks prescribed by the Committee as the JNU follows a semester system and opens in the Monsoon Semester in the last week of July. The period of 8 weeks would therefore coincide with the mid-semester examinations, which start from the last week of September, and disrupt the academic schedule as the elections would have to be held right before the mid-semester examinations when session examinations and

assignments/tutorials have to be submitted. There appears to be some merit in the submission of the JNUSU and it is therefore respectfully submitted that a relaxation of four additional weeks may be considered by this Honble Court over and above the eight weeks recommended by the Committee. Furthermore, regarding the time period for completion of the election process from canvassing to the actual declaration of results, the JNUSU

submits that it shall complete the entire process within 10 days from the date of withdrawal of nominations of candidates a proposal that is reasonable as it includes the entire process of campaigning, voting, counting and declaration of results. An alternative to the aforementioned clauses may be considered as follows: 6.4.1 It is recommended that the entire process of elections, commencing from the date of filing of nomination papers to the date of declaration of results, including the campaign period, should not exceed 10 days from the date of withdrawal of nominations. 6.4.2 It is further recommended that elections be held on a yearly basis and that the same should be held between 10 to 12 weeks from the date of commencement of the academic session.
ii. Age restriction for candidates: Recommendation 6.5.1 to 6.5.3 of the

Committee report prescribes age restrictions for candidates belonging to various courses of study (17-22 years for undergraduate students, 24-25 years for postgraduate students and upto 28 years for research students). The recommendations of the Committee, in this regard, read as follows: 6.5.1 Under graduate students between the ages of 17 and 22 may contest elections. This age range may be appropriately relaxed in the case of professional colleges, where courses often range between 4 to 5 years. 6.5.2 For Post Graduate Students the maximum age limit to legitimately contest an election would be 24 25 years. 6.5.3 For research Students the maximum age limit to legitimately contest an election would be 28 years. The JNUSU, is however of the view that, keeping in mind the fact that the JNU is primarily a research-based institution offering very few

undergraduate courses and primarily offering courses at the M.A., M. Phil and PhD levels, the age limits prescribed by the Committee may require

some relaxation. The JNUSU therefore sought an increase in the age limit to 32 years. It is submitted that while there is some force in this submission of the JNUSU, it is pertinent to point out that during its deliberations, the Committee came across several instances of overage 'students' being fielded as candidates and taking repeated admissions in the college for this very reason. It is submitted that one of the primary concerns of the Committee was to balance the interests of student democracy with the larger interest of maintaining an academic atmosphere within the university/college campus. Keeping this in mind the Committee was of the view that the primary object of a student in a college/university ought to be to receive education, rather than to spend their time in political activities. The Committee was also of the opinion that a student union should not be viewed in the same light as a workers' union, as that manner of conceptualization brought to mind issues relating to the suppression of tradesmen and workmen, a concept that could not be applied to the students in an institution. The JNUSU seems to proceed on the basis that all students, regardless of their age should be eligible to contest student elections, as the admission structure of the JNU itself permits admission of students over the age of 32. It is, however, submitted that it would not be proper for a research scholar who enters the university at the age of 30, or above, to be actively indulging in student elections rather than spending most of his/her time pursuing the research stream he/she has joined the institution to pursue. In this respect, therefore, it is suggested that the upper age limit for candidature in student elections for research students be increased to 30 years and no further. It is accordingly suggested that this Honble Court may be pleased to consider a modification of Recommendation No. 6.5.3 of the Committees

recommendations as follows: 6.5.3 For research Students the maximum age limit to legitimately contest an election would be 30 years.

iii. Attendance criteria: Recommendation No. 6.5.5 of the Lyngdoh

Committee report stipulates that: 6.5.5 The candidate should have attained the minimum percentage of attendance as prescribed by the university or 75% attendance, whichever is higher. The JNUSU, however states that there is no requirement for attendance at all in the JNU and attendance is in fact not taken. It therefore seeks the indulgence of this Honble Court with regards to the attendance criteria prescribed by the Committee. In this regard, it is the submission of the JNUSU that the JNU has, over several decades, arrived at a model wherein every course offered by the University is so demanding that it requires a reasonable amount of effort and dedication to just stay above board. Attendance has therefore never been of much significance in the institution. This model seems to have worked in the JNU and hence the relaxation in terms of minimum attendance required for contesting elections may be considered.
iv. Repeat criterion: Recommendation No. 6.5.6 of the Lyngdoh Committee

report stipulates that a candidate may contest only once for the post of office bearer, and twice for the post of an executive member of a student representative body. The recommendation reads as follows: 6.5.6 The candidate shall have one opportunity to contest for the post of office bearer, and two opportunities to contest for the post of an executive member. This recommendation was initially opposed by the JNUSU on the ground that it would be detrimental to the development of leadership qualities, as a student who contests and loses is deprived of another chance at contesting for the post of student representative. The JNUSU further contends that students usually first try for positions in the Executive Councils of their respective schools and only then stand for office bearer positions. They therefore seek a relaxation of two times each for the position of councillors

and office bearers. Having discussed the matter with various stakeholders there appears to be some merit in this submission, it is accordingly suggested that this Honble Court may be pleased to consider a modification of Recommendation No. 6.5.6 of the Committees recommendations as follows: "6.5.6: A candidate shall have two opportunities to contest for the post of office bearer and two opportunities to contest for the post of executive member."
v. Criminal Record of candidates: Recommendation 6.5.7 of the Lyngdoh

Committee's report requires that a candidate not have a previous criminal record. Recommendation 6.5.7. states that: 6.5.7: The candidate shall not have a previous criminal record, that is to say he should not have been tried and/or convicted of any criminal offence or misdemeanor. The candidate shall also not have been subject to any disciplinary action by the University authorities. The Committee was clear in its mandate that institutions of higher education are meant to be places of learning rather than hot beds of politics. It noted several cases in which individuals with criminal records were contesting elections and vitiating the academic atmosphere of the university/college. The provision is therefore a salutary one, in as much as it prevented anyone with a criminal record from participating in elections. The report however places the onerous requirement that the candidate not even be tried of a criminal offence or misdemeanour, thereby implying that even a candidate found innocent after a complete disciplinary or judicial process would not be eligible for participating in the elections. While such a provision ensures that only those with a clean record would be allowed to contest elections it disregards the use of politically motivated complaints that could disqualify a deserving candidate from contesting elections. It is therefore suggested that

this Honble Court may be pleased to consider a modification of Recommendation No. 6.5.7 of the Committees recommendations as follows: 6.5.7: The candidate shall not have a previous criminal record, that is to say he should not have been charged and/or convicted of any criminal offence or misdemeanor. The candidate shall also not have been charged and/or convicted in any disciplinary action by the University authorities.
vi. The use of printed material and pamphlets: Recommendation 6.7.5

of the report provides that no candidate shall be permitted to make use of printed posters, printed pamphlets, or any other printed material for the purpose of canvassing. Candidates may only utilize hand-made posters for the purpose of canvassing, provided that such hand-made posters are procured within the expenditure limit set out herein above.

Recommendation 6.6.1 fixes the maximum expenditure by a candidate at Rs.5,000. The Lyngdoh Committee had taken serious exception to cases in some universities where expenses were as high as Rs.50,000 for a candidate, the use of money and muscle power was viewed as a very dangerous trend plaguing students union elections. The JNUSU contends that while the use of printed material ought to be prohibited it is difficult to hand out manifestoes, pamphlets and fliers without making photocopies. The suggestion of the JNUSU is a reasonable one provided that the expenditure incurred is within the limit of Rs.5000 as prescribed by recommendation 6.6.1. It is therefore suggested that the use of photocopied material be considered by this Honble Court.
vii. Grievance Redressal Mechanism: Recommendation 6.8.1 of the

Lyngdoh Committee's report prescribes the constitution of a Grievance Redressal mechanism to address election-related grievances. The said mechanism involves collaboration between students, members of the faculty and administrative staff of the institution. Recommendation No.6.8.1 reads as follows:

6.8.1 There should be a Grievances Redressal Cell with the Dean (Student Welfare) / teacher in charge of student affairs as its chairman. In addition, one senior faculty member, one senior administrative officer and two final year students one boy and one girl (till the election results declared, students can be nominated on the basis of merit and/or participation in the co-curricular activities in the previous year). The grievance cell shall be mandated with the redressal of election-related grievances, including, but not limited to breaches of the code of conduct of elections and complaints relating to election-related expenditure. This cell would be the regular unit of the institution.
21. The JNUSU opposes the recommended mechanism on the ground that the JNU

student elections have been held for the past four decades without any interference from the JNU administration. It is the JNUSUs submission that the election process involves a rigorous process of selecting an Election Committee (hereinafter referred to as the EC), the members of which are each selected unanimously through a General Body Meeting held in each School. The members of the EC therefore enjoy a great deal of credibility within the student body.
22. The JNUSU states that the EC has its own Code of Conduct and Grievance

Redressal Mechanism, which is strictly implemented by the EC and adhered to by all participants in the Election Process. It is their contention that the presence of an elected and autonomous EC ensures the objectives of maintaining the democratic nature of elections and deters any malpractice in the elections, which is borne out by the fact that no decision of the Election Committee has been questioned, thus far, by either the University or any Court of Law in the Country. It is, however, submitted that the presence of members of the faculty in the election process as an oversight is necessary. It is equally important for aggrieved students to have recourse to independent faculty members beyond the student community. It is therefore respectfully submitted that the grievance redressal mechanism prescribed by the Lyngdoh Committee be adhered to by ensuring coordination between the EC and the JNU administration.

23. It needs to be reiterated that these suggestions are being tendered as an interim suggestion to reflect the aspirations as expressed by a section of students, faculty and administration of the JNU. It may be clarified that there does exist a contrary view point. 24. In view of the continuing uncertainty due to no elections being held over the past several years, this alternate course is being suggested.

PRAYER In view of the aforementioned circumstances and facts of the case, it is respectfully submitted that this Honble Court may be pleased to consider the suggestions made by the Amicus Curiae hereinabove and pass appropriate directions in the matter.

Filed by: Date: [GOPAL SUBRAMANIUM] AMICUS CURIAE