Judicial view on shortage of attendence

Two recent decisions of the Delhi High Court aptly summarize the view of the judiciary towards those who fail to secure the minimum specified levels of attendance and thereafter rush to courts for relief. The author, personally having seen the trend of those who skip classes and then rush to the courts for interim relief so as to appear in exams, is in full agreement with the ratio of these decisions. The High Court, discouraging the courts being turned into an instrumentality to frustrate the morale of those diligently attending the classes, in stern and no uncertain terms declared that the minimum attendance has to be observed by the students.

In Kangana Modi v. Kusum, (2010) 170 DLT 648 the High Court declared that there would be no relaxation for shortage of attendance, observing as under;

19. There is no royal road to education. Absenteeism has become chronic in the present day and it has to be cured by making the students realize that education teaches only those in attendance. Students take admissions in various courses and they are required to fulfill the laid down attendance norms of each University/college or institution. No doubt that because of youthful age, students sometimes do bunk classes or even sometimes due to certain exigencies, medical or otherwise, are not able to attend the classes, but for that the provision of abstaining from 25% in over all subjects and 35% in the core subjects has already been made by the respondent institute. Further provision of relaxation has already been made if a student is short of attendance in modular subject/non-core subject if due to medical or other unavoidable reasons the student has not been able to attend his/her classes. The courses in the cases hand are no doubt related to Fashion but the legal proposition as set out is similar to the case of Kiran Kumari Vs. Delhi University & Ors in W.P. (C) No. 9143/2007 where the Hon’ble division Bench of this court was confronted with a case where the students of LLB course in the Delhi University, where the minimum attendance required is 66% overall and subject wise as well, were short of attendance. This court observed that:

“In maters relating to academics and standards of education, the Court would show deference to the opinion of the academicians unless a case of patent perversity is made out by the petitioners. The present is not, however, one such case where the requirement of the rule can be said to be so perverse or irrational as to call for the intervention of this Court. As a matter of fact, the minimum percentage of lectures having been fixed at 66%, still gives to the students freedom to miss or abstain from 34% of the such lectures. That is a fairly large percentage of lectures which a student may miss for a variety of reasons including sickness or such other reasons beyond his control. No student can however claim that apart from 34% lectures which he is entitled to miss even without a cause the shortage to make up 66% should be condoned if he shows good cause for the same.” 

The Apex court has time and again held that misplaced sympathy should not lead to granting relief to the students in academic matters. It would be useful to refer to the recent judgment of the Apex Court in the case of Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh v. Vaibhav Singh Chauhan,(2009) 1 SCC 59, where it observed that:

“Before parting with this case, we would like to refer to the decisions of this Court which has repeatedly held that the High Court should not ordinarily interfere with the orders passed in educational matters by domestic tribunals set up by educational institutions vide Board of High School & Intermediate Education v. Bagleshwar Prasad6 (vide AIR para 12), J.P. Kulshrestha (Dr.) v. Allahabad University7 (vide SCC para 17 : AIR para 17), Rajendra Prasad Mathur v. Karnataka University8 (vide SCC para 7 : AIR para 7). We wish to reiterate the view taken in the above decisions, and further state that the High Courts should not ordinarily interfere with the functioning and orders of the educational authorities unless there is clear violation of some statutory rule or legal principle. Also, there must be strict purity in the examinations of educational institutions and no sympathy or leniency should be shown to candidates who resort to unfair means in the examinations.”

Hence, on the touchstone of the above said principles, there can be no compromise with the said conditions laid down by the respondent in their attendance policy. Moreover it is not the case of the petitioners that the said policy is arbitrary or irrational and should be struck down by the Court. This Court can be sympathetic with these students, but the sympathy and emotions cannot override the academic standards set out in the policy of the respondent, which the students were well versed with.

Thus the High Court made it clear that it would not come to the rescue of those who do not fulfill their part of obligations. The second decision, however, takes note the humane understanding one has to always retain. On this count, the same judge in Vandana Kandari v. University of Delhi (2010) 170 DLT 755 declared that the stern attitude against avoiding classes was required to be relaxed where the reason for non-attendance was genuine. On this count, the High Court relaxed the attendance conditions for those who misses classes on account of pregnancy. The High Court noted these considerations in the following terms;

51. However, the Directive Principles of State Policy contained in Part IV of the Constitution of India, under Article 41 requires the State to make effective provision for securing the right to work and to education and Article 42 requires that the State shall make provision for securing just and humane conditions of work and for maternity relief. Mr. R.K Saini, counsel appearing for these petitioners placed reliance on the judgment of the Apex Court in the case of MCD vs. Female Workers (supra) and it would be worthwhile to reproduce the relevant para of the said judgment here:

“Since Article 42 specifically speaks of "just and humane conditions of work" and "maternity relief, the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which, though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of. xxx

A just social order can be achieved only when inequalities are obliterated and everyone is provided what, is legally due. When who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear, of being victimised for forced absence during the pre or post-natal period.”

52. Article 15(3) empowers the State to make special provisions for women. Women constitute 50% of the country's population and without making education a reality for them, fundamental rights shall remain beyond the reach of a large majority of population of this country which is illiterate. The Supreme Court in a catena of judgments has held that right to education is implicit in right to life and personal liberty guaranteed by Article 21 and now with the Right to Education Act in force, education cannot be kept outside the reach of any citizen. Education is the greatest leveler of all inequalities and only if women are given equal opportunity for education they can stand on an equal footing with men. 

53. Of all the rights of women, to be a mother is the greatest. Long ago, the Universal Declaration of Human Rights, by Article 25 had declared that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. Article 25(2) provides that:

2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

54. It would, while on the topic, also be essential to refer to the Convention for Elimination of All Forms of Discrimination Against Women (CEDAW). The Vienna Convention on the Elimination of all forms of Discrimination Against Women was ratified by the U.N.O. on December 18, 1979. The Government of India who was an active participant to CEDAW ratified it on June 19, 1993 and acceded to CEDAW on August 8, 1993 with reservation on Articles 5(e) 16(1) 16(2) and 29 thereof. The Preamble of CEDAW reiterates that discrimination against women, violates the principles of equality of rights and respect for human dignity; is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; hampers the growth of the personality from society and family and makes it more difficult for the full development of potentialities of women in the service of their countries and of humanity. It would be pertinent to quote the relevant provisions here:

11(2). In order to prevent discrimination against women on the ground of marriage or maternity and to ensure their effective right to work, states parties shall take appropriate measures; 

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of martial status;

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

In the case of Madhu Kishwar & Ors. vs. State of Bihar & Ors. (1996) 5 SCC 125, the Apex court held that though the Directive Principles and Fundamental Rights provide the matrix for development of human personality and elimination of discrimination, these conventions (CEDAW) add urgency and teeth for immediate implementation. Hence, it is this court which has been enjoined upon the duty to put life into the provisions of these international conventions.

55. At this stage, it would also be significant to mention the case of Air India vs. Nergesh Mirza (1981)4 SCC 335 where the Apex Court was confronted with the constitutional validity of Regulation 46(i) (c) of Air India Employees' Services Regulations which provided that the services of the Air Hostesses would stand terminated on first pregnancy. It would be pertinent to quote the relevant para of the said judgment here:

“Having taken the AH in service and after having utilised her services for four years, to terminate her service by the Management if she becomes pregnant amounts to compelling the poor AH not to have any children and thus interfere with and divert the ordinary course of human nature. It seems to us that the termination of the services of an AH under such circumstances is not only a callous and cruel act but an open insult to Indian womanhood the most sacrosanct and cherised institution. We are constrained to observe that such a course of action is extremely detestable and adhorrent to the notions of a civilised society. Apart from being grossly unethical, it smacks of a deep rooted sense of utter selfishness at the cost of all human values. Such a provision, therefore, is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked despotism and is, therefore, clearly violative of Article 14 of the Constitution. In Sharron A. Frontiero v. Filliot L. Richardson 36 L. Ed. 2d 583 the following observations were made: 

Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate "the basic concept of our system that legal burdens should bear some relationship to individual responsibility. What is said about the fair sex by Judges fully applies to a pregnant woman because pregnancy also is not a disability but one of the natural consequences of marriage and is an immutable characteristic of married life. Any distinction therefore, made on the ground of pregnancy cannot but be held to be extremely arbitrary”.

56. In the light of the above discussion, if any female candidate is deprived or detained in any of the semester just on the ground that she could not attend classes being in the advanced stage of pregnancy or due to the delivery of the child, then such an act on the part of any of the university or college would not only be completely in negation of the conscience of the Constitution of India but also of the women rights and gender equality this nation has long been striving for. It is a saying that “Motherhood is priced of God, at price no man may dare to lessen or misunderstand”. By not granting these students relaxation, we will be making motherhood a crime which no civilized democracy in the history of mankind has ever done or will ever do. We cannot make them pay the price for the glory that is motherhood. 

57. It would not be inappropriate to mention at this juncture the recent rulings of the Apex Court in the cases of Lata Singh vs. State Of U.P AIR 2006 SC 2522 and S. Khushboo vs. Kanniamal & Anr where it has given liberty to the live-in relationship from the shackles of being an offence and also in the latter case where it has held that premarital sex is not an offence. The society today is changing at a rapid pace and we must be in tune with the realities and not hold on to archaic social mores. Once such a right, however unpopular, is recognized then it cannot be ruled out that there can be more cases of girl students proceeding on maternity leave when while they are still in college. Law should be an instrument of social change and not a defender of it. Motherhood is not a medical condition but a promise. We all kowtow to our mothers to whom we owe our existence and to punish a woman for becoming a mother would surely be the mother of all ironies.

58. Hence, a female student cannot be deprived from her student status or can be detained in any semester on account of the fact that she could not attend the classes because of her pregnancy and therefore so far these two students in are concerned, they deserve relaxation under the mandate of the Constitution.