Freedom of association and ban on student politics in educational institutions
The death of Abrar Fahad, a second year BUET student of EEE, on 7 October 2019, gave rise to public outrage all over the nation, especially among the students of BUET who demanded immediate ban on student politics in the campus. The authority, submitting to the demands of the students, issued a notification on 11 October 2019 imposing ban on all political organisations and their activities on BUET campus. However, the recent political events on the BUET campus allegedly in breach of the said notification have made the campus turbulent. Meanwhile, a writ petition has been filed at the High Court Division on 1 April 2024 questioning the constitutionality of the said notification on the ground of, amongst others, alleged violation of freedom of association. The Court has acted promptly by staying the notification of the BUET authority and issued a Rule Nisi asking why the decision to ban student politics on campus should not be deemed unconstitutional.
Article 38 of our Constitution enshrines the right to freedom of association. Therefore, forming or carrying on with a political association including within the premises of the educational institutions seemingly is a fundamental right that must be protected. However, such right is subject to 'reasonable' restrictions that are imposed by law. Moreover, such restrictions are lawful only if they are put forward in the interests of (i) morality or (ii) public order.
Similar provision can be found in the ICCPR (International Covenant on Civil and Political Rights). Article 22 of the ICCPR entails that everyone shall have the right to freedom of association with others and restrictions can be placed only by law provided they are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.
The provisions imply that freedom of association is not an absolute right, and it may be curbed on satisfying the mentioned grounds provided the restrictions are reasonable and imposed by law. However, it should be noted that the existence of any reasonable and objective justification for limiting freedom of association is not sufficient rather the prohibition on such association must be demonstrated to be in fact necessary to avert a real and not hypothetical danger to the national security or democratic order and that less intrusive measures would be insufficient to achieve this purpose (as observed by the United Nations Human Rights Committee in Lee v Republic of Korea). The UN HRC has time and again clarified its position that no right can be so curtailed that its 'essence' or 'minimum core' is rendered entirely nugatory or meaningless.
Nonetheless, the question as to whether educational institutions can impose such restrictions on student politics on campus has not been adequately explored within our jurisdiction. A writ petition was filed with the High Court Division on 13 October 2019 questioning the legality of student politics, but no follow-up has been reported yet. Therefore, to address the question, it may be pertinent to look into the judgments from neighbouring jurisdiction.
In Sojan Francis v M.G. University (2003), the university management provided a code of conduct restricting political activism on the campus and students were forbidden to organise or attend meetings other than the official ones. The students' association contended that such restrictions were highly undemocratic, unreasonable and violative of Article 19(1)(a) and 19(1)(c) of the Constitution of India (which correspond to Articles 39 and 38 of our Constitution respectively). The constitutionality of the restrictions was questioned. The Kerala High Court held as follows:
'Banning political activities within the campus and forbidding the students from organising or attending meetings other than the official ones within the campus is not designed to prohibit any of the fundamental rights of the students guaranteed under Article 19(1)(a) or 19(1)(c). It is not a total prohibition of any fundamental right, but only a reasonable restriction confined to the campus and the code of conduct cannot be flouted in the name of any other freedom or the rights guaranteed under Article 19(1)(a) or 19(1)(c).'
However, the question remains whether student politics can be banned altogether on the campus. The case of Kerala Students Union v Sojan Francis (2004) has clarified on this point as well. The Kerala High Court observed that students can voice their opinion on any political issue in the various forums earmarked to them under the university statutes, but not through the organisations which have not been recognised either by university statutes, state government or by the educational institutions. It thus clarified that the Court did not entirely prohibit the students from indulging in political activities so as to fundamentally affect the right of freedom of association.
The judgments elucidate a dichotomy between being engaged in politics and conducting activism through political organisations on campus. The Courts have approved the authority of the educational institutions to impose restrictions on the latter aiming to prevent disruption of discipline on the campus. However, the students are not prohibited from engaging in politics per se.
The position was further affirmed in Prof. Raju Kuruvilla v State of Kerala (2020) where the Court viewed freedom of association and freedom of occupation as competing interests and held that disruption of the activities in an educational institution would violate the fundamental right of the management to run the institution resulting from freedom of occupation. It observed that organisations of students do not have any right to disrupt the academic and other activities of students who do not want to partake in their strikes and agitations.
Hence, we see that the Court viewed such restrictions as proportionate and reasonable because they were deemed to serve the legitimate purpose of preventing disruptions in academic activities. Besides, politics was not outrightly banned in its entirety, but was allowed within the institutionally approved framework.
However, in light of Lee v Republic of Korea, it may be submitted that instead of a blanket prohibition on organising political activities by the independent student unions, the Court might have allowed restrictions imposed not on a hypothetical disruption posed by student politics but only when these activities pose a real threat to the maintenance of discipline within the campus.
In the end, it can be argued that banning students' politics is not as straight forward an issue as it may apparently seem. It is now to be seen in due course as to how the High Court Division finds the delicate equilibrium between competing interests.
The writer is student of law, University of Dhaka.