MV Narayanan

New UGC norms may set bad precedent for federal relations in other spheres


UGC, NcRF, Vedas, Puranas
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A fundamental legal question connected with the federal system is the way in which subordinate/delegated legislations of Parliament, such as the UGC Regulations, are included as part of Central legislation and deemed to prevail over Acts of State Legislatures, whenever there is a conflict between them in subjects that fall under the Concurrent List.

Can an institution in rural TN function like one in urban Delhi? It's akin to UCC, which ignores plurality of society, says final part of critique of new UGC norms

The draft of the proposed UGC Regulations, 2025, released by the Centre on January 6, has drawn strong objections from several quarters, with Tamil Nadu and Kerala seeking its immediate withdrawal.

Their objection is not without reason. The regulations blatantly defy the provisions of the UGC Act and undermine the Constitutional principles of federalism, university autonomy and academic freedom, the practice of academic standards and quality the UGC is supposed to protect, and all the fundamental canons of natural justice.

Read part 1: Why making the governor sole authority in VCs selection is patently wrong

A major bone of contention in the draft regulations is Section 10, on the appointment of vice-chancellors in universities, which vests the entire power of doing so with the chancellor, which in most state universities happens to be the governor of the state, appointed by the Centre.

The issue of subordinate legislation

Another major issue is how the UGC regulations — a subordinate legislation — illegitimately and unconstitutionally intrude into the power of legislative assemblies to formulate and promulgate Acts of State Universities as part of the powers vested in them by the Constitution in subjects that are part of the Concurrent List.

In this regard, a fundamental legal question connected with the federal system is the way in which subordinate/delegated legislations of Parliament, such as the UGC Regulations, are included as part of Central legislation and deemed to prevail over Acts of State Legislatures, whenever there is a conflict between them in subjects that fall under the Concurrent List.

Also read: 'New UGC norms one more nail in coffin of higher education': Academic Apoorvanand

Rules and regulations formulated by executive bodies as subordinate legislations are laid before each House of Parliament for 30 days and automatically become the law unless they are modified or annulled by both Houses within that period. Known in parliamentary parlance as “negative procedure/resolution,” the above procedure is what applies to statutory instruments.

The crucial aspect of such legislation is that no discussion or voting is involved in any of these rules in either House of Parliament, unless the Committee on Subordinate Legislation of either house, or a member, raises it and is permitted to do so.

Very little scrutiny

Even though the Supreme Court has described this procedure as Parliament’s mechanism to maintain “strict vigilance and control over its delegate” (WP 4509 of 1980, Lohia Machines Ltd & Another vs Union of India & Ors), in actual practice, there is very little scrutiny of subordinate legislations because hardly any of these legislations are ever inspected or examined by the committees.

In a telling piece of statistics, only 101 cases of subordinate legislation, out of 6,985, had been scrutinised by the two parliamentary committees between 2008 and 2012, that is, 1.45 per cent of the total number (Ajay K Mehra; The Indian Parliament and Democratic Transformation, Taylor & Francis, 2017).

When such subordinate legislations are deemed to prevail over Acts of the State Legislatures, even as they have gone through all the democratic, parliamentary procedures, it is tantamount to disenfranchising the State Legislatures through backdoor means and constitutes a gross undermining of the “division of powers” — between the Union and state governments — that is central to the spirit and practice of a federal system.

Erroneous SC judgment

The present situation, wherein the UGC Regulations intrude upon state legislations and lead to total Central control of state universities in contravention of all basic principles of federalism has been, to a great extent, facilitated, even institutionalised, by what can only be termed as a highly erroneous and ill-informed judgment of the Supreme Court.

Also read: UGC draft rules: After non-BJP-ruled states, NDA ally JD(U) sees red

Previously, the Bombay High Court had considered both matters of ultra vires and the role of subordinate legislation in a public interest litigation (No 80 of 2011, Suresh Patilkhede Versus The Chancellor, Universities of Maharashtra & Others).

After detailed consideration of the provisions of the UGC Act, a number of previous judgments of the Supreme Court, and a thorough perusal of the UGC Regulations, Chief Justice Mohit S Shah and Justice NM Jamdar, in their judgment dated May 11, 2012, state unambiguously: “We are, accordingly, of the considered view that Regulations 7.2.0 and 7.3.0 of UGC Regulations for appointment of Pro-Chancellor and Vice Chancellor of the University governed by UGC Act cannot be treated as falling under Clauses (e) and (g) of Section 26(1) of the UGC Act, 1956.”

Further, with regard to the matter of subordinate legislation, again following a catena of Supreme Court decisions that lay down that the subordinate legislation framed under the Act of Parliament cannot nullify the plenary legislation enacted by a State Legislature, the judges also pronounced that “a subordinate legislation made under a Central Act cannot override a plenary State legislation on the subject falling in the Concurrent List and that a plenary legislation made by Parliament alone can override the plenary legislation made by the State.”

Arbitrary dismissal

However, in the Kalyani Mathivanan vs KV Jayaraj case (Civil Appeals Nos.5946-5947 OF 2014), a Supreme Court bench consisting of Justices Sudhansu Jyoti Mukhopadhaya and NV Ramana, in total disregard of the legal aspects, previous Supreme Court judgments, and the detailed discussion of the issues in the Bombay High Court judgment, overruled the judgment arbitrarily and without assigning any reasons whatsoever.

Also read: TN Assembly passes resolution for rollback of UGC’s new regulations 2025

We do not agree with the finding of the Bombay High Court that Regulation 7.3.0 of the UGC Regulations, 2010 is not traceable to clause (e) or (g) of Section 26(1) of UGC Act, 1956. We also refuse to agree that Regulation 7.3.0 of the UGC Regulations, 2010 being a sub-ordinate legislation under the Act of Parliament cannot override the preliminary legislation enacted by the State Legislature,” the judgment read.

There is no discussion or explanation of the grounds for their disagreement, the legal or other problems of the high court judgment, or even a cursory overview of it — just a casual, summary dismissal.

Following this, in the Gambhirdan K Gadhvi vs The State of Gujarat case, a Supreme Court bench of Justices BV Nagarathna and MR Shah reiterated the same position without going into any legal explanations or detail.

Need of the hour

Close on the heels of these two Supreme Court judgments followed several other judgments of both the Supreme Court and high courts effectively instituting them as the law of the land. In Kerala, it resulted in the chancellor initiating steps to dismiss several vice-chancellors on the grounds that their appointments did not adhere to the letter of the UGC Regulations.

The real need of the hour is a concerted attempt to challenge the above Supreme Court judgments on substance. The importance of such action lies in the immensely dangerous potential of the UGC model being employed by the Centre with other executive bodies in other domains of governance to go beyond the mandate given them by their Acts, as also to subvert the power of the state legislatures and governments through subordinate legislations.

Given the tendencies of authoritarianism evident in the Union government and the BJP, it is only realistic to realise that this is not far-fetched but a distinct possibility. And, that will be the death knell for all federalism even its pretence.

Common academic standards

Even as the UGC Regulations are aimed at maintaining standards in higher education, the institution of a common and rigid system across the country leaves little space for academic autonomy of universities and the factoring in of the different requirements and aspirations of different regions and communities.

To assume that an institution in rural Tamil Nadu should function exactly like one in urban New Delhi and offer the same kind of programmes, have the same kind of faculty, and have the same set of rules for selection and promotion is somewhat similar to implementing a Uniform Civil Code with little appreciation of the plurality of Indian society.

Also read: New UGC norms for VC selection draw intense opposition from states

It is undoubtedly an ambitious project, one that aims to bring the entire country into a singular mould, the perilous connotations of which will not be lost on anyone appreciative of the dangers of authoritarianism.

Subjective evaluation

At the same time, in the guise of doing away with quantitative assessment in the form of API (Academic Performance Index) scores in selection and promotion, a feature that has consistently been objected to by teachers, there is a move in the 2025 Draft Regulations to a system that is claimed to be more qualitative.

Professor Jagadeesh Kumar, the Chairman of the UGC, has stated, “The 2025 regulations move away from the API-based shortlisting used in previous guidelines, focusing instead on a more holistic, qualitative assessment.”

Laudable as this may appear, the small print of the Regulations holds a few surprises that reveal the real motives behind the move. The draft states that the qualitative assessment of candidates for recruitment and promotion is to be conducted through consideration by the selection committee of “notable contributions” that comprise “Innovative Teaching Contribution; Research or Teaching Lab Development; Consultancy/ Sponsored Research funding as a Principal Investigator or Co-Principal Investigator; Teaching contributions in Indian languages; Teaching-Learning and Research in Indian Knowledge System; Student Internship / Project Supervision; Digital Content Creation for MOOCs; Community Engagement and Service; Startup, as per the intellectual property/policies of the HEI.”

Another school for barbarians?

Apart from the problem of a purely subjective evaluation that most of these notable contributions shall entail, making it next to impossible to question any decision of the selection committees in courts on objective grounds, it also surreptitiously ushers in contributions in “Indian Knowledge Systems,” a thinly veiled term for right-wing Hindutva propaganda being presented as knowledge.

This is, no doubt, a clever strategy to populate the universities and colleges with right-wing faculty and turn them into breeding grounds for the Hindutva Armageddon.

The takeover, thus, is not from above alone, but from below, too. We have seen this before in other places too, under similar political dispensations. Fascist Germany is the best example, where schools, colleges, and universities became factories for the creation of cadres for the Nazi party. Erica Mann, the daughter of the great novelist Thomas Mann, called that system “The School for Barbarians.”

Whether the Indian educational system is turning into another school for barbarians is the moot question now.

(The Federal seeks to present views and opinions from all sides of the spectrum. The information, ideas or opinions in the articles are of the author and do not necessarily reflect the views of The Federal.)

Read part 1: Why making the governor sole authority in VCs selection is patently wrong

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