Kerala High Court: New Fundamental Right to Privacy is Available Against Private Citizens and Media

Kerala High Court: New Fundamental Right to Privacy is Available Against Private Citizens and Media

The Kerala High Court while setting aside the judgment of the single judge holding that Priya Varghese, the wife of Chief Minister Pinarayi Vijayan’s private secretary, did not have the relevant experience for the post of Malayalam Associate Professor, the division bench of the Kerala High Court has criticized the media for discussions on matters pending before the Court.

The division bench comprising of Justices A.K. Jayasankaran Nambiar and Mohammed Niyas held in the context of media reporting of court proceedings that the new fundamental right to privacy is also available against private citizens. The bench further urged the media to exercise caution while reporting on Court matters, especially oral remarks made by judges during the hearing of cases.

In the instant matter, the appellant- Priya Varghese claimed to be an Assistant Professor in an autonomous college. Kannur University published the provisional rank list of candidates for selection to the post of Associate Professor through a notification, wherein, the respondent was ranked second after the appellant. The appellant challenged the qualification of first rank holder in the said rank list for the post of Associate Professor based on years of experience, disproportionate marks, etc.

The single judge held that the experience held by appellant while on deputation under Faculty Development Program at Kannur University, and as the Director of Student Services at the Kannur University could not be treated as teaching/research experience as per Regulation 4.1.II of the UGC Regulations, 2018.

The following issues arose for consideration before the division bench of High Court:

1. Was the writ petition bad for non-joinder of parties?

2. Can the research period undergone by the appellant under the Faculty Development Program of the Kannur University count towards the research experience of the appellant for the purposes of Ext.P2 notification read with the UGC Regulations of 2018?

3. Can the period spent by the appellant while on deputation as Director of Student Services of the Kannur University be counted towards the teaching experience required for appointment as an Associate Professor pursuant to Ext.P2 notification?

4. Can the period spent by the appellant as Lecturer at the Teacher Education Centre at Kannur University on ad hoc/contract basis be counted towards the teaching experience as Assistant Professor required for appointment as an Associate Professor pursuant to Ext.P2 notification?

5. Does the teaching experience of 8 years as Assistant Professor stipulated for the post of Associate Professor in Ext.P2 notification must be gained after the candidate in question acquires the Ph.D. qualification?

With respect to issue (i), the Court noted the objection raised by the appellant as regards non-joinder of necessary parties in the writ petition.

In this regard, the Court declined to agree with the finding of the learned Single Judge that merely because the Registrar of the University or any of the other respondents did not raise such an objection, it was not an objection that was worthy of consideration on merits.

The Court rejected the submission of the learned senior counsel appearing for the writ petitioner that the strict rules of pleadings and impleadment of parties applies only to proceedings before the civil courts and not to constitutional courts.

The Court explained that the rule on joinder of parties is to ensure presence of essential parties for complete resolution of dispute while adjudicating a matter.

“In view of the settled law on the subject, and the specific provisions of Order 1 Rule 10 of the CPC, the principles of which are not alien to the writ jurisdiction, we find that the writ petition was indeed bad for non-joinder of necessary parties,” the bench observed.

The Court in connection to the issue (ii), deemed it apposite to first examine the extent to which research and community outreach programs are recognized as integral aspects of pedagogy under the Indian model of Higher Education that is regulated by the UGC.

The Court explained the close integration of teaching and research and analyzed Regulations 17.0.I., 8 and 9 of the UGC Regulations, 2018.

The Court expressed that the scheme clearly revealed about promotion of research among faculty members, and the University/College/Institution seek advantage by demanding continued service of the teacher. It further pointed towards Faculty Improvement Scheme, and the Faculty Development Scheme which replaced the previous scheme for promoting research, providing the procedure followed for selection of up to 20% regular faculty to confer research opportunities.

The bench held that the period spent by appellant to pursue PhD under Faculty Development Program could not be excluded while reckoning the teaching/research experience as Assistant Professor for appointment to the post of Assistant Professor through impugned notification of Kannur University.

For the issue (iii), the Court was of the view that, “it must depend upon the nature of activities undertaken by the teacher in the post to which she is deputed and not merely by the classification – as teaching or non-teaching.”

The Court further explained the scope of the phrase ‘teaching experience’ can be determined only through an understanding of the true nature and scope of the word ‘teaching’ or ‘pedagogy’ itself.

It upheld the period spent by appellant on deputation as Director of Student Services/Program Coordinator of National Service Scheme (NSS) being rightly reckoned by the University as teaching experience while determining the appellant’s eligibility for the post of Assistant Professor.

As regards to the issue (iv), the bench perused the impugned University notification and UGC Regulations and highlighted absence of any requirement of proximity in time in the application for qualifying experience for appointment as Associate Professor. It further pointed out that the post of Lecturer was merely re-designated as Assistant Professor, not being a qualitative change in duties.

In connection to issue (v), the Court noted that the impugned judgment held that Rule 10 of the Kerala State & Subordinate Service Rules 1958 (KS&SSR) would apply only to cases where the statutory rules were silent on whether the experience prescribed should be before or after the date of acquisition of the basic qualification for the post.

The appellant had contended that in the instant case, the statutory provision was clear in that the teaching experience of 8 years had to be in a candidate’s capacity as Assistant Professor, which post did not mandate the possessing of a Ph.D. degree as requirement for continuing in the post.

Therefore, the Court refused to interfere with the Single Judge’s finding on the said issue, which was decided against the respondent.

Before departing, the Court in the context of media reporting of Court proceedings held that the new fundamental right to privacy is also available against private citizens.

The bench sought support from the recent observations of Chief Justice of India on media reporting of interaction among judges and counsels and said that “the media cannot be unmindful of the harm that is caused to a litigant’s dignity and reputation through unjustified comments and remarks, often based on the oral remarks made by a judge during the adjudication proceedings, notwithstanding that the litigant ultimately succeeds in those proceedings.”

The Court expressed that on account of its nature as a right that is personal to an individual, recognized the fundamental right to privacy, which takes within its fold the right to protection of one’s reputation and merit classification as a fundamental right that protects an individual, not only against arbitrary State action, but also against the actions of other private citizens, such as the press or media.

Thus, the Court left it to the media professionals to take note of Court’s observations for adopting a responsible journalistic conduct.