The good, the bad and the ugly at BHU
By Ankita Ramgopal
Image credit: The Wire
The pattern of institutionalised gender discrimination which has come to light following the outbreak of violence following student protests on the night of September 23rd at the Banaras Hindu University (BHU), has brought to focus the need for reform in such University campuses across the country.
Following a visit from a panel from National Commission for Women (NCW) including acting chairperson Rekha Sharma, Banaras Hindu University reconstituted a 32-member proctorial board headed by chief proctor Royana Singh. According to news reports, this happened in light of the resignation by previous chief proctor O.N.Singh who was held to be one of the authorities responsible for the violence breaking out on campus between protesting students and the police. As was reported in the Indian Express, a three-member team from NCW investigating the incident has alluded to incidents of gender discrimination and harassment on campus that exists, referring to it as rampant ‘eve-teasing’. They have gone on to blame the Vice Chancellor of BHU, stating that the violence could have been avoided by Girish Chandra Tripathi, who proceeded on indefinite leave beginning 2nd October, a little over a month before his scheduled retirement.
The chain of events leading up to the outbreak of violence proceeded as follows. On 21st September, a visual arts student of the second year was allegedly assaulted by three men on a bike on the university campus while she was returning to her hostel in the evening, while the campus guards who were nearby did nothing. She proceeded to make a complaint to the warden of the hostel, but instead of helping her locate the perpetrators and bring them to justice, he went on to question her on why she was out late. The complaint was also taken up with Vice Chancellor Tripathi, but no cognizance of the incident was taken. Driven by the lack of disciplinary or legal action and the blatant disregard of the authorities to the incident of sexual harassment, on 22nd September onwards a group of students gathered at the gate of the University campus protesting the inaction.
The protest grew to around 200-250 students and continued till 23rd night, when the police were permitted onto the campus of the hostel to deal with the situation. Students as well as journalists who were on campus to cover the protests were attacked and several were injured badly as a result of the lathi charge. A number of videos showing a woman being violently beaten up by police officers have been circulating on the internet and sparked outrage. Once the police came onto campus, students and staff of the University was informed Section 144 Indian Penal Code was imposed, prohibiting what could be construed as unlawful assembly on the university premises.
FIRs were registered by the police against 1000 BHU students in the form of FIRs against unknown persons, on the allegations of arson during the protest. The sections of the Indian Penal Code under which the FIRs have been lodged include Section 148(rioting with armed weapon), 307(attempt to murder), 353(criminal force to deter a public servant from discharge of duties), 332(voluntarily causing hurt) and 436(mischief by fire or explosive substance with intent to destroy the house). The vindictive nature of these FIRs are clearly meant to stifle any further peaceful protests on the university campus.
Absence of redressal mechanism
These incidents have brought to light a pattern of systematic gender discrimination taking place on campus and reveals the vulnerable infrastructure which has not made provisions for dealing with grievances of such nature. On questioning students of the campus, it was identified that there is no existing system of addressing grievances of sexual harassment on campus.
According to a student of BHU who was part of the protest at the time of the agitation, Mineshi Mishra, “There are no real functioning systems of redressing grievances of sexual harassment on campus. Now because of the media attention on this issue they are talking about setting up of Internal Complaints Committees. Till now the only method of complaint for such was to go to the Proctor or to the Dean of students.”
This is in direct contravention of the University Grants Commission (Prevention, prohibition and redressal of sexual harassment of women employees and students of higher educational institutions) Regulations that were passed by the Ministry of Human Resource Development by a notification dated 2nd May, 2016.
While these Regulations have not been adopted by the Executive Committee of the University, the fact that the BHU is a Central University that receives funding from UGC should render an obligation to adopt these measures or appropriate measures to entertain complaints of sexual harassment. BHU has adopted the UGC (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education), 2016 as well as the UGC (2nd Amendment) Regulations, 2013.
A case can be made to hold BHU under an obligation to follow UGC regulations or adopt their own complaints mechanism for dealing with complaints of sexual harassment after looking at certain judgements in the Supreme Court and High Court. In an Apex Court judgment in Kalyani Mathivanan v. K.V.Jeyaraj [(2015)6 SCC 363] the question arose for consideration whether the UGC (Minimum Qualifications for Appointment of Teachers and other Academic Staff in Universities and Colleges and Measures for the Maintenance of Standards in Higher Education), 2010, are applicable to appointment for post of Vice Chancellor of Madurai Kamaraj University Act, 1965. It was held in this case
“62.2. The UGC Regulations, 2010, being passed by both Houses of Parliament, though a subordinate legislation has binding effect on the universities to which it applies.
62.3. The University Regulations, 2010, are mandatory to teachers and other academic staff in all Central Universities and colleges thereunder and the institutions deemed to be universities whose maintenance expenditure is met by UGC.”
In an Allahabad High Court judgement Brijesh Kumar Tiwari v. Banaras Hindu University and ors. [WP(C)14235/2014] dated 12th April, 2016, a petition was filed with regard to selection proceedings for the appointment of assistant professors by the Selection Committee at Banaras Hindu University, where the obligation to follow the UGC Regulations, 2010, was discussed, it was said by the Court
“As the University is funded by the UGC, therefore, the directives issued by the UGC are binding on the Banaras Hindu University.”
The University Grants Commission with its power conferred under clause (g) of sub-section (1) of Section 26 of the University Grants Commission Act, 1956, read with Section 20 of the UGC Act, 1956, passed the University Grants Commission (Prevention, prohibition and redressal of sexual harassment of women employees and students of higher educational institutions) Regulations, 2015. Under the provisions of these regulations, every higher educational institution has the responsibility to bring those guilty of sexual harassment against its employees and students to book and initiate all proceedings as required by law and also put in place mechanisms and redressal systems like the ICC to curb and prevent sexual harassment on the campus.
According to clause (o) of sub-section (1) of Section 3 of the Regulations, the higher educational institution is mandated to appoint an ICC within a period of sixty days of the publication of the regulations.
According to sub-section (1) of Section 3.2 of the Regulations, the executive authority of the higher educational institutions must mandatorily extend full support to see that the recommendations of the ICC are implemented in a timely manner, and all possible institutional resources must be given to the functioning of the ICC, including office and building infrastructure, staff as well as sufficient allocation of financial resources.
Section 12 of the Regulations prescribes consequences of non-compliance to the provisions of the regulations, stating that any institution that will fully contravene or repeatedly fail to comply with the obligations and duties laid out for the prevention, prohibition and redressal of sexual harassment of employees and students may face certain action by the UGC. It may see it as reason for withdrawal of grants for the particular institution under Section 12B of the UGC Act, 1956, withholding any grant made available to that institution, declaration of the institution ineligible for consideration for any assistance under any of the general or special assistance programmes of the Commission. It may even result in UGC recommending Central Government for withdrawal of declaration as an institution deemed to be a university or take any such action till the institution complies with the provisions of these regulations. Therefore, it is essential for an ICC to be formulated on campus and gender sensitisation needs to be a key issue to focus on by the next appointed Vice Chancellor.
The Delhi High Court has been hearing petition filed by certain students and teachers of Jawaharlal Nehru University seeking quashing of an Executive Council decision by which the Gender Sensitization Committee Against Sexual Harassment (GSCASH) had been replaced with immediate effect with an Internal Complaints Committee (ICC) as per the University Grants Commission's (UGC) Regulations on sexual harassment, 2015. While these petitioners have challenged the mandatory application of these Regulations to JNU on the ground that the regulations do not automatically apply to JNU, it cannot be forgotten that JNU did have its own Regulations for the Prevention of Sexual Harassment, which functioned successfully for more than ten years. The mandatory and binding nature of the UGC regulations is pending in the High Court of Delhi ( Read related story here.)
BHU has additionally ignored the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 which mandates all workplaces having more than 10 employees to constitute an ICC, which is tasked with resolving complaints of sexual harassment and carrying out sensitization on the subject and the provisions of the Act. There is no doubt whatsoever that BHU has violated the provisions of the Act as an institution for which the VC must be held fully responsible.
The normalized pattern of gender discrimination can be seen through the different hostel timings, whereby the female students had a closure timing of 6 p.m. while boys had it at 10 p.m. Female students were also made to sign an affidavit when joining the University, to ensure their non-participation in any kind of protest or agitation. Therefore, from such practices it is clear that gender discrimination has actively been institutionalized on campus. The indifferent response of University authorities to the complaint of sexual harassment was a result of normalized bias.
Shortfalls in appointment of VCs
The appointment of Vice Chancellors in Universities has been criticized previously for giving too much control to the Central government, leaving it open for political appointments to take place, often resulting in Vice Chancellors lacking in qualifications and an understanding of the institution. VC’s of Central Universities are appointed by the President of India, who is acting ex-officio visitor of all central universities. The President generally acts on the advice of Central Government. Similarly, in state universities appointments are made by the governor, often in consultation with the state government, and only sometimes in consultation with the university.
Under the Banaras Hindu University Act, 1969, sub-section (1) of Section 7B prescribes that the Vice-Chancellor is to be appointed by the Visitor on the recommendation of a Selection Committee constituted by the Visitor. The appointments are made in recommendation of the Ministry of Human Resource Development as a notice is sent out by the Ministry in the case of appointments calling for eligible candidates to apply for the position. There is a need for such appointments to be made independent of any government intervention, in order to avoid political appointments to be made.
Additionally, there lacks any statutory procedure for disciplinary action against Vice Chancellors provided by BHU. Although there is a provision under Section 12B of the BHU Act, which prescribes disqualifications from any position of a person being a member of any of the authorities of the University.
“Section 12B (1) A person shall be disqualified for being chosen as, and for being a member of any of the authorities of the University-
(a) if he is of unsound mind or is a deaf-mute or suffers from contagious leprosy;
(b) if he is an undischarged insolvent ;
(c) if he has been convicted by a court of law of an offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months.
(2) If any question arises as to whether a person is or had been subjected to any of the disqualifications mentioned in sub-section (1), the question shall be referred for the decision of the Visitor and his decision shall be final, and no suit or other proceeding shall lie in any court of law against such decision.”
Sub-clause (c) prescribes if he has been convicted by a court of law of an offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months. Whether this can be applied against the Vice Chancellor is unclear, however till date it has not been used against such authority.
Sub-section (2) of Section 12B of the Act contains that if any question arises as to whether a person is or had been subjected to any of the disqualifications mentioned in sub-section (1), the question shall be referred for the decision of the Visitor and his decision shall be final, and no suit or other proceeding shall lie in any court of law against such decision. Therefore, whether the Vice Chancellor Mr. G.C. Tripathi should be held accountable for the violence inflicted on the students on 23rd September is to be considered.
Another point of contention has been with regard to the appointment of Dr. O.P. Upadhyay. This appointment of Upadhyay as the Medical Superintendent of the Sir Sunderlal hospital on university campus was being pushed for by the VC G.C. Tripathi. However, students and teachers have been outraged by this appointment due to the fact that he has been convicted by a Fiji Court of indecent assault. In June 2014 Dr. Upadhyay the High Court of Fiji upheld the conviction of the Magistrate and sentenced him to 3 years imprisonment for indecent assault against the complainant who deposed that he kissed her and touched her inappropriately. The University has taken the defence while justifying his appointment stating that this conviction was not good and does not hold in our country since it was made in a foreign court.
While the rules of private international law of each state may differ, but by the comity of courts certain rules are recognized as common to civilized jurisdictions. Through part of the judicial system of each state, these common rules have been adopted to adjudicate upon disputes involving a foreign element and to effectuate judgements of foreign courts in certain matters, or as a result of international conventions. Therefore, foreign judgements which are in consonance with the common principles fair play are accepted in other countered as part of the doctrine of comity of courts. Under this rule of private international law, it would be correct for BHU to uphold the decision of the Fiji Court and consider his conviction for sexual assault as a reason to render his appointment invalid. The central issue that needs addressing is not whether the criminal conviction of a foreign court is binding on Indian Courts, but whether a person who has been convicted of an offence involving moral turpitude is eligible for appointment in the University. The answer is clearly in the negative.
Further, Section 32 of the BHU Act contains provisions for the removal of employees other than teachers. Sub-clause (c) states that if he has been convicted by a court of law of an offence involving moral turpitude and sentenced in respect thereof to imprisonment for not less than six months, it is grounds for removal of such employee. Therefore, by these provisions, it is clear that grounds can be made against the hiring of Dr. O.P. Upadhyay.
The Supreme Court in August agreed to hear petitions filed by BHU students regarding the discriminatory practices on campus such as discriminatory hostel rules. The matter is expected to come up for hearing before the Bench in November. The scrapping of discriminatory provisions would be a precedent to university campuses across the country.
BHU has actively resisted protests and dissenting voices, through its policies, and as has be witnessed through the manner in which the protests were handled. However, with the light being shed on the rampant sexual harassment and violence of other forms there is an urgent need to change the outlook of this university. It is essential that active measures be taken to ensure gender sensitisation on campus and for BHU administration to actively participate in dialogue with their students.
 B.M. Prasad, The Code of Civil Procedure by Sir Dinshah Fardunji Mulla (18th Ed. 2011) at pg. 345
Ankita Ramgopal is Research and Advocacy Officer at Lawyers Collective
Disclaimer:"The views in the article are of the author and do not represent the views of the Invisible Lawyer"