ISLAMABAD: Every university has the right to set out its disciplinary and other policies in accordance with the law and unless any policy goes against the fundamental rights of the students or violates any law, courts should exercise self-restraint in such matters, the Supreme Court has said in a judgement.

“The academic, administrative and disciplinary autonomy of a university must therefore be respected,” observed Justice Syed Mansoor Ali Shah in the judgement.

The verdict was given on a petition filed by the Khyber Medical University (KMU) against a decision of the Peshawar High Court (PHC) passed on March 25, 2021.

In its decision, the PHC had reduced the punishment handed down by the university to Aimal Khan — a student of the fourth semester at BS-Paramedics (Dental Technology).

Judgement says courts should exercise restraint in matters of educational institutions

The student was apprehended while impersonating a female student by appearing on her behalf in the second-semester examination paper of human physiology.

Consequently, he was proceeded against by the KMU under Regulation 32(c) of the Khyber University Examination Regulations, 2017, and was disqualified for three years by its Unfair Means (UFM) Committee on Dec 16, 2020.

The student then challenged the punishment before the PHC, which accepted the position that the student was caught red-handed while impersonating, but reduced the penalty from three years to one by taking a lenient view and holding that the punishment was a little bit harsh and liable to rectification.

Later, the KMU moved the Supreme Court, whose plea was heard by a bench comprising Justice Sardar Tariq Masood, Justice Mazhar Alam Khan Miankhel and Justice Syed Mansoor Ali Shah. The bench set aside the high court’s decision and restored the UFM committee punishment.

In its judgement, the apex court held that the courts should sparingly interfere in the internal governance and affairs of educational institutions and avoid dislodging decisions of university authorities, who possess technical expertise and experience of actual day-to-day workings of the educational institutions.

Every university had the right to set out its disciplinary and other policies in accordance with law and unless any such policy offends the fundamental rights of the students or violates any law, interference by the courts resulted in disrupting the smooth functioning and governance of the university, the judgement emphasised.

This self-restraint by the courts in matters of educational institutions was based on the wisdom that academic freedom and institutional autonomy of the universities must be protected and safeguarded.

“Academic freedom is not merely liberty from restraints on thought, expression and association in the university, but also that the university should have the freedom to make decisions about the educational matters, including disciplinary matters,” the judgement said.

Democracy, human rights and the rule of law could not become and remain a reality unless higher education institutions and its staff and students enjoy academic freedom and institutional autonomy, it said.

“Conversely, we cannot have genuine democracy unless the higher education and research community is able to enquire freely,” Justice Shah observed, adding that the higher education institutions were places that had to be imbued with democratic culture and that, in turn, helped to promote democratic values in society.

Courts existed to settle disputes that come before them, the judgement noted, adding that it was not their constitutional mandate to run and manage public or private institutions or micromanage them or to interfere in their policy and administrative internal matters, it said.

Our constitutional democracy was run by laws and not by men, the judgement said. The judges were to decide disputes before them in accordance with the constitution and the law, not on the basis of their whims, likes and dislikes or personal feelings.

“A good judge intelligently balances law and equity to ensure that justice is tempered with mercy but never at the expense of overriding the letter of the law,” it said, emphasising that compassion, which might be said to be a shade of, and had nexus to, the rules of equity could not be given precedence and superseding effect over the clear mandate of law.

Compassion and hardship, therefore, might be considered by courts for providing relief to an aggrieved person, but only when there was scope in the relevant law to do so, not in breach of the law.

Therefore, reducing the disqualification period by the PHC contravened the relevant law and was an example of judicial overreach or judicial overstepping, where law is ignored or modified by the court to give way to personal emotions and sense of compassion and such exercise of judicial power was not permissible, the judgement said.

Published in Dawn, January 16th, 2022

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