No fault in school’s decision to expel student for public display of affection: Kerala HC

A school’s decision to expel student for public display of affection has been upheld by the Kerala High Court.

Justice Shaji P Chaly quashed the order of Kerala State Commission for Protection of Child Rights objecting to such expulsion. The High Court held that the Child Rights Commission’s powers were not coercive, but only recommendatory in nature.

Factual Background

The Commission was approached by a 12th standard male student during the pendency of disciplinary proceedings against him initiated by St Thomas Central School, Thiruvananthapuram.

The student had been pulled up by his teachers after he hugged a female student in front of teachers and other students in the school. It was submitted on behalf of the student that he had only given a congratulatory hug to his friend during the School Arts Festival on being impressed with the recital of a song.

Strong offence appears to have been taken by a witnessing teacher, who had deposed before the Court that she was shocked to see the incident and she has not experienced any such public display of affection.

Later, the school authorities took offence to certain photographs published on Instagram featuring both students, which were viewed as obscene.

On behalf of the student, it was submitted that the pictures in question were taken at a birthday party and further that they were private and not founded on bad intentions or motives.

It was also argued that the images may have been accessed after hacking private Instagram accounts, given that none of the authorities were following either of the students on the social media platform.

Disciplinary proceedings initiated against the students resulted in the suspension of both students in September 2017.

Meanwhile, the Kerala State Commission for Protection of Child Rights intervened. In an order passed in October, the Commission directed the school to allow the student to attend classes, invoking powers under Section 94 (e) and Section 151 of the Code of Civil Procedure, 1908. Seeking to assail this order, the school authorities had approached the High Court.

Disciplinary proceedings against the students were completed during the pendency of this writ petition, and in November 2017, the boy student was expelled from the school.

Powers of the Child Rights Commission only recommendatory

The Court agreed with the petitioner school that the Commission exceeded its powers in ordering the school to allow the student to continue attending classes. Section 14 of the Commissions for Protection of Child Rights Act, 2005 only conferred upon the Commission the powers of a civil court while conducting an inquiry and nothing more. The Court opined,

“If the said provision is interpreted in any other manner, the result would be disastrous, rather than beneficial. Moreover, the Parliament was cautious enough while conferring such a power, by employing the phraseologies “inquiry” and “trial” in section 14. Which thus also means the power is circumscribed to the limited extent of enjoying the powers of inquiry and trial contemplated under CPC.”

Further, it was observed that Section 15 of the 2005 Act also indicated that the powers of the Commission were only recommendatory.

“Yet another reason persuading me to arrive at such a conclusion is the stipulation contained under Sec.15 of Act, 2005, dealing with ‘Steps after inquiry’. Clause (iii) of Sec.15 is relevant, which reads thus:

‘…recommend to the concerned Government or authority for the grant of such interim relief to the victim or the members of his family as the Commission may consider necessary.’”

Therefore, the Court held that,

“…if at all any power is conferred on the 1st respondent [Child Rights Commission], the same is only recommendatory in nature, recommending to the Government for grant of such interim relief to the victim or the members of his family…

… the 1st respondent did not have any power to pass an interim order directing the school to permit the 2nd respondent to continue with the classes, and comply with such consequential actions. I reiterate that the power conferred under Sec.14 of Act, 2005 is only in respect of the power under the Code of Civil Procedure while conducting enquiry during the trial proceedings”

Jurisdiction of the Child Rights Commission does not extend to matters of School Discipline

After referring to various International standards touching upon child rights, the Court opined that a matter concerning the maintenance of discipline in school would not fall within the jurisdiction of the Commission.

“That apart, the definition given to “child rights” in Sec.2(b) and the reference to the relevant provisions of Ext.P16 of United Nations Conventions, I am of the considered opinion that, the inquiry of the 1st respondent contemplated under Act, 2005 is confining to the areas referred to in Ext.P16, which will not in any manner take care of a situation like the one on hand, in respect to the maintenance of the discipline in the school.”

On the other hand, the Court opined that it was absolutely within the rights of the school to act so as to maintain and sustain the standard and reputation of the school.

“The enquiry was proceeded with and the 2nd respondent was found guilty. As I have pointed out earlier, the action initiated by the school was in respect of an unfortunate incident that have taken place in the school, substantially affecting the discipline and morale of the school. Therefore, it cannot be found fault with the petitioners proceeding by initiating action against the 2nd respondent.”

School may reconsider, take a broader outlook

Before parting with the case however, the Court observed that while it cannot interfere with the school’s decision, the school may still re-consider its penalty keeping in mind that the student is currently in his final school year and that such incidents are only an offshoot of natural adolescent instincts. The judge remarked,

“However, there remains a hard reality, natural instincts of students in adolescence.”

After reiterating that the Court does not intend to interfere with the school’s decision on the matter, the Court noted that,

“…the Principal and teachers of the school thus functioning, enjoying the characteristics and principles of loco parentis, definitely have a larger and broader outlook to these aspects, and nothing standing in the way of the school authorities rising to the occasion and re-considering the issue, bearing in mind, the 2nd respondent is a XII standard student and particularly, he is to face the Board examination during the month of March/April. He has also to appear in the model examinations that are to take place immediately…”

It was suggested that,

“… the school authorities may also bear in mind, a balancing approach to the issue. The authorities may also be at liberty to impose reasonable fine on the parents of the 2nd respondent, so as to make it as a deterrent to the students, and precaution to avoid similar incident.”

Read the Judgment.