In a landmark judgement that holds out of hope for free expression, and also quoting from Voltaire who famously said “I disapprove of what you say, but I will defend to death your right to say it.” the Allahabad High Court today, ruled in favour of renowned Gandhian, professor and Magsaysay award winner, Dr Sandeep Pandey and quashed the decision of the IIT Banaras Hindu University (BHU) to pre-maturely terminate his contract. The fact that the professor was not given a chance to explain the serious charges levelled against him was also strongly rebuked by the High Court. The path-breaking order can be read here.
Justices Mahesh Chandra Tripathi and V.K. Shukla moreover also recalled the syncretic vision of the founder ot the Banaras Hindu University, Pandit Madan Mohan Malaviya, saying, “…The (BHU) Founder's vision has been as follows; “India is not a country of Hindus only. It is country of Muslims, the Christians and the Parsees too. The country can gain strength and develop itself only when the people of different communities in India live in mutual goodwill and harmony. It is my earnest hope and prayer that this Centre of life and light which is coming into existence will produce students who would not be intellectually equal to the best of their fellow students in other parts of the world, but will also live a noble life, love their country and be loyal to the supreme ruler.”
The High Court' order also questions the motives of the IIT-BHU administration that took a summary decision to dismiss Dr Pandey without giving him an adequate hearing. The action was both 'stigmatic' and 'punitive' and guided by a differing ideological view. Further, it violated the procedural guidelines//rules of conduct. It states clearly that basic freedom of expression was violated in the Board's decision.
On January 6, 2016 in yet another show of high-handedness under the new Central government, the administration of the IIT-BHU had terminated the services of Dr Sandeep Pandey
Extracts from the Order say that:
“… Here the termination order certainly proceeds to make a note that services of petitioner are being disengaged in consonance with the terms and conditions of the service but the larger question is as to whether the order in question on its face value, appears to be innocuous, is a stigmatic order or not.
“In the present case, the order in question has to be accepted as stigmatic/punitive one for the simple reason that here petitioner has been not only accused of committing cyber crime but has also been accused of imparting teaching contrary to national interest.
“In the counter affidavit, conscious of the fact that line has already been crossed, as a damage control device, observations have been termed to be on prima facie basis. Once the Board of Governors proceeded to form such an opinion and based on the same such a decision has been taken, then it may be true that nature of the engagement of petitioner is a contractual one but once the order is not a termination simplicitor as per the terms and conditions of the contract rather on lifting the veil, it is clearly reflected that basically differences of ideologies has led to such action as petitioner appears to be a believer of different ideologue than the ideologue believed by the incumbent, who proceeded to make complaint, and the people saddled with the administration came on the same page, for reasons best known to them, and here before us from the side of petitioner it has been submitted that academic administrators have lineage to the ideology from which the complainant came forward.
“… Academic administrators should be politically neutral, at the point of time of dealing with academic/administrative matters of the University. The decision of Academic Administrator has to be free from malice and the said authority has to be exercised in free, fair and transparent manner after complying with the principle of natural justice. Apex Court in the case of Andhra Pradesh State Road Transport Corporation Vs. State Appellate Tribunal, 1998 (7) SCC 353, held that the power can not be arbitrarily/ indiscriminately exercised. The power is coupled with duty.
“… Here once the complaint was made and it was going to have serious repercussions, then, at the said point of time, it is true that petitioner may be the author of the aforementioned documents in question but certainly as to whether it falls within the category of cyber crime or in any way all such materials affected the national interest certainly would have been explained by the petitioner, who is alumnus of the University and a Magsaysay Award winner and fully understand the consequences of his activities.
“Petitioner has been performing and discharging his duties in BHU and he is bound by the conduct rules and in case petitioner has proceeded to cross the lines, then certainly after affording adequate opportunity of hearing and after examining all these aspects of matter, his services could have been disengaged, as per the terms and conditions of the contract.
“The case in hand is not a termination simplicitor rather it is a punitive/stigmatic order wherein petitioner has been alleged to have committed cyber crime and not only that he has been accused of cyber crime, allegations have been there that he is acting against the national interest. Heavy words such as commission of cyber crime and acting against national interest have been loosely used.
“All these allegations are serious in nature and such allegations have serious aspersions on the conduct and character of an incumbent and the way and manner in which decision in question has been taken as against him ex-parte cannot be approved of by us.
“… Rights, restrictions and duties co-exist. Apex Court in the case of S. Rangarajan Vs. P. Jagjivan Ram, 1989 (2) SCC 574, held:“The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom, by an intolerant group
of people. The fundamental freedom under Article 19 (1) (a) can be reasonably restricted only for the purposes mentioned in Articles 19 (2) and the restriction must be justified on the anvil of necessity and not the quickstand and of convenience or expediency.
“Open criticism of Government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself.”
“… Freedom of speech has been quoted by S.G. Tallentyre, author of the book 'Friends of Voltaire' as follows: “I disapprove of what you say, but I will defend to death your right to say it.”
“…The (BHU) Founder's vision has been as follows; “India is not a country of Hindus only. It is country of Muslims, the Christians and the Parsees too. The country can gain strength and develop itself only when the people of different communities in India live in mutual goodwill and harmony. It is my earnest hope and prayer that this Centre of life and light which is coming into existence will produce students who would not be intellectually equal to the best of their fellow students in other parts of the world, but will also live a noble life, love their country and be loyal to the supreme ruler.”
“… On one hand it is necessary to maintain and preserve freedom of speech and expression in democracy, on the other hand when one is discharging public duty he/she will have to to keep in mind that Rules/Regulations /Statutes framed by the University/Educational Institution has not been breached.
“… Here, in pith and substance, petitioner has been attributed with misconduct and without holding enquiry by violating the principle of natural justice with impunity impugned order has been passed that clearly casts stigma on the character of petitioner and is punitive in nature.
Consequently, in the facts of the case, on overall assessment of all aspect of matter, the decision dated 6.1.2016, which has been taken in pursuance of meeting dated 21.12.2015 of the Board of Governors, IIT (BHU), Varanasi, is hereby quashed and set-aside.
“Writ petition is allowed, accordingly with all consequential benefits with cost."
On February 6, 2016 during the hearing of the case, the Allahabad High Court had come down heavily on the administration and asked the BHU administration to explain the summary termination.
It was in pursuance of Resolution No 3.59 passed at the meeting of the Board of Governors held on December 21, 2015 that the decision to terminate the services was taken. The BOG, of the IIT BHU, was during the litigation, forced to defend its resolution, which has been passed, casting stigma and making serious allegations against Dr Pandey. Dr Sandeep Pandey was called 'anti-national', without providing any opportunity for him to be heard, or giving him a chance to respond or explain. The BOG simply took cognisance of a letter from a student of M.A. IInd year Political Science (who never attended the IIT classes), even without taking any pains to verify the correctness of the allegations leveled. Dr Pandey was Visiting faculty at the IIT, BHU.