The Expelled Student and the University's Visitorial Power
Rahim, a final-year LLB student at a private university in Dhaka, was expelled by an order of the university's Disciplinary Board on 3 March 2024. The Board found him guilty of 'gross misconduct' after an incident in which he allegedly tore down a notice from the faculty board. The show-cause notice issued to him on 10 February 2024 did not specify the allegations or the evidence against him; it merely stated that he had 'violated discipline'. Rahim was not permitted to cross-examine the complainant or to be represented by a lawyer at the hearing, though the university's own regulations allow a student to be accompanied by a 'friend'. The expulsion order was signed by the Registrar without any recorded reasons. Rahim has exhausted the internal appeal to the Vice-Chancellor, which was dismissed in a two-line letter. He wishes to challenge the expulsion in the High Court Division under Article 102 of the Constitution. The university argues that its disciplinary decisions are matters of internal academic policy and are not amenable to judicial review.
1. Is the university's disciplinary decision amenable to judicial review under Article 102(2) of the Constitution? Explain the applicable test and whether the university's argument that its action is a matter of 'internal academic policy' is tenable.
Read the worked answer
The university's argument is not tenable. Article 102(2)(a)(ii) empowers the High Court Division to issue certiorari where a 'person performing functions in connection with the affairs of the Republic or of a local authority' or 'any other public authority' acts without lawful authority or in a manner contrary to law. A private university operating under the Private University Act is treated as performing a public function where it exercises statutory or quasi-public powers affecting the rights of students, particularly where its degrees and disciplinary powers are recognised by law.
The controlling test is whether the body exercises a public function and whether its decision affects the civil rights of the applicant. Even if the university is a private body, once it exercises disciplinary power over a student's right to continue a recognised course of study, its decision is amenable to review. The court will not interfere with the merits of academic decisions (e.g. marks or academic judgement) but will review the process for illegality, irrationality, procedural impropriety and proportionality.
Here the decision is amenable to review. The 'internal academic policy' argument fails because expulsion is a disciplinary sanction affecting livelihood and reputation, not a purely academic assessment. The court will examine whether the decision-maker had authority, whether the procedure was fair, and whether the decision was reasoned.
2. Identify the specific grounds of procedural impropriety in this case and assess whether each is strong enough to found relief.
Read the worked answer
Several distinct grounds arise:
Inadequate notice. The show-cause notice of 10 February did not specify the allegations or the evidence. Natural justice requires that a person be told the case against him with sufficient particularity to enable a meaningful response. A notice stating only 'violated discipline' is defective. This is a strong ground.
No opportunity to test the evidence. Rahim was not permitted to cross-examine the complainant. The right to cross-examine is not absolute in every disciplinary proceeding, but where the facts are disputed and the complainant's account is the sole basis of the charge, refusal may amount to a denial of a fair hearing. This is a moderately strong ground, subject to the university's regulations.
Right to representation. The regulations allow a 'friend'. Refusal of a lawyer is not automatically fatal, but the refusal must be reasonable and the student must be given a fair opportunity to present his case. If the regulations were breached by refusing even a friend, that is a strong ground.
Absence of reasons. The Registrar signed the order without recorded reasons, and the Vice-Chancellor's appeal decision was a two-line letter. While there is no universal duty to give reasons, where a serious sanction is imposed and an appeal is provided, the absence of reasons undermines the fairness of the process and the effectiveness of the appeal. This supports the case.
The cumulative effect of these defects is sufficient to establish procedural impropriety, and the High Court Division may quash the expulsion and, if appropriate, remit the matter for a fresh hearing.
3. What relief should Rahim seek, and what is the practical consequence if the High Court Division quashes the expulsion?
Read the worked answer
Rahim should seek:
- A rule nisi under Article 102(2)(a)(ii) calling upon the university and the Registrar to show cause why the expulsion order and the appellate decision should not be declared to have been made without lawful authority;
- Certiorari to quash both the expulsion order and the Vice-Chancellor's appellate decision;
- Mandamus directing the university to reinstate him and permit him to sit for the remaining examinations;
- An interim order staying the operation of the expulsion pending hearing, since the academic year is time-bound and delay would render the remedy nugatory;
- Declaratory relief that the proceedings violated natural justice.
If the court quashes the expulsion, the legal effect is that the order is treated as never having been made. However, the court will not ordinarily substitute its own finding of guilt or innocence; it will remit the matter to the university for a fresh hearing conducted in accordance with natural justice. The practical consequence is that Rahim is restored to his student status, but the university may re-initiate disciplinary proceedings on proper notice. If the court finds that no fair hearing is possible (e.g. bias), it may prohibit further proceedings. Rahim should also consider a damages claim only if he can establish a distinct legal wrong, since certiorari itself does not award compensation.