The Supreme Court has intervened in the Vice-Chancellor appointments of the Kerala Digital University and the Kerala Technological University after it became clear that the state government and the Governor could not reach an agreement. The Court on December 11 directed the two search committees, both headed by Justice Dhulia, to prepare a list naming the most qualified candidate as the first choice and the rest in order of preference for each university and submit it by next Wednesday. The Bench of Justices JB Pardiwala and KV Viswanathan said it will issue the final appointment order on Thursday.
The decision of the Supreme Court did not sit well with the Governor, who said that universities were well-established constitutional bodies and the courts taking over their functions was not entirely appropriate.
Earlier, in August, the Supreme Court had appointed former Justice Sudhanshu Dhulia to lead two search committees to break the impasse and to ensure a fair and transparent selection process. The Committees were instructed to submit panels of names of suitable candidates to the Chief Minister, who was to then forward them to the Governor-Chancellor with his recommendations.
However, on receipt of the panels from the CM, the Chancellor moved the court to exclude the Chief Minister from the process, on the grounds that the UGC Regulations and the University Statutes do not permit the CM’s involvement in the selection process.
During the hearing on November 28, the Supreme Court had expressed its strong reservations on the Governor’s decision to disregard the committee’s recommendations and had warned that it would step in if an amicable settlement is not reached. State Ministers P Rajeev and R Bindu had met the Governor on Wednesday last to resolve the standoff, but with the Governor refusing to relent, the Supreme Court has now stepped in with this new decision to take the onus of appointment upon itself.
Apparently, the SC's decision to intervene is intended to break the "deadlock" between the Chancellor/Governor and the State and to ensure that universities do not languish without proper leadership. However, there are two crucial issues here that need to be addressed.
The first is the question of the use of Article 142 of the Indian Constitution, which grants the Supreme Court extraordinary power to pass any decree or order for "complete justice" in any pending case.
As has been repeatedly observed by legal experts, Article 142 is a kind of double-edged sword. It can be of immense importance in the effort to transcend strict legal technicalities or fill legislative gaps to ensure proper justice, as has happened in the Bhopal gas tragedy case (1991), in which comprehensive settlement and compensation were awarded to the victims, overriding statutory limitations; the Vishaka guidelines (1997), which filled a legislative void and established guidelines against sexual harassment at the workplace; the Shah Bano case (1985), which granted alimony to Muslim women; the liquor ban on highways (2016), which prohibited alcohol sales within 500 metre of highways to curb drunk driving, etc., to quote a few.
At the same time, it has also been observed that the judiciary taking on the role of the executive sets an unsavoury precedent of judicial overreach that is best avoided. In this particular matter, the court's decision to involve itself in the very process of Vice Chancellor selection and appointment will most certainly lead to a legal quagmire because, instead of solving one case, it will, on the contrary, only bring up several more such cases.
Let us face it, this is not an exceptional, or even a singular, case. There are at least nine universities in Kerala alone in which Vice Chancellor appointments have been pending for upwards of two years and are functioning under "in-charge VCs", not to speak of many more in other states ruled by non-Bharatiya Janata Party (BJP)/National Democratic Alliance (NDA) parties.
Without exception, in all of them, the primary problem is that the Governor-Chancellors function as instruments of the Union government and are bent on appointing only such people as are acceptable to the Union government, to the total exclusion of the interests of the state governments and even of the criteria of quality.
The moot question then is whether the Supreme Court will intervene in all of them and take upon itself the authority of VC appointment. If that were to happen, what kind of precedent would that create in the matter of separation of powers between the judiciary and the executive? A more commonsensical question would also be whether the apex court should take on this additional burden when it is already burdened with a huge backlog of cases that deserve its greater attention.
A second and even more significant fact is that – there is no other way to put it – this crisis is primarily of the Supreme Court's own making. The continuous series of stand-offs that we have witnessed between the Governor-Chancellors and state governments of Tamil Nadu, West Bengal and Kerala in the appointments of Vice-Chancellors in state universities can be traced to two major verdicts of the apex court. In the Kalyani Mathivanan vs KV Jayaraj case (Civil Appeals Nos. 5946-5947 of 2014) and the Gambhirdan K Gadhvi vs The State of Gujarat case (Writ Petition (Civil) No 1525 of 2019).
The Court held that the UGC Regulations – a central, "subordinate legislation," which is not passed by Parliament but formulated by a central agency – shall prevail over laws enacted by the state legislatures, even as higher education is on the concurrent list with shared authority for both state and central legislations. These two verdicts effectively annulled the provisions for VC selection and appointments in the Acts and Statutes of the respective state universities and laid down that the UGC Regulations on the same be followed to the letter.
Apart from undermining the letter and spirit of constitutional federalism, these two verdicts refused to address – or better to say, suppressed – two major legal/constitutional concerns that should have been properly taken up by the Supreme Court.
The first is the question of whether the UGC has the authority to formulate regulations on Vice Chancellor selection and appointment, a matter to do with the governance of universities, when the UGC Act specifically lays down that the UGC's function is only the "coordination of standards in teaching, research and examinations."
To put it simply, are the UGC Regulations on VC appointments ultra vires of the UGC Act? The second is whether a subordinate legislation formulated by a central agency, which is seldom discussed or voted on in Parliament but only "tabled," is superior to a plenary legislation enacted by state legislatures after going through all democratic legislative procedures.
Previous to the SC verdicts referred above, 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 thorough consideration of the provisions of the UGC Act, several previous judgements of the Supreme Court, and a threadbare perusal of the UGC Regulations, Chief Justice Mohit S Shah and Justice NM Jamdar, in their judgement of 11 May 2012 stated unambiguously, “We are 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, in the matter of subordinate legislation, again relying on a catena of Supreme Court decisions which laid down that subordinate legislations 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.”
However, in the Kalyani Mathivanan vs K. V. Jayaraj case, the Supreme Court bench, consisting of Justices Sudhansu Jyoti Mukhopadhaya and NV Ramana, overruled the Bombay High Court judgement arbitrarily and without assigning any reasons whatsoever.
“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 subordinate legislation under the Act of Parliament cannot override the preliminary legislation enacted by the State Legislature.”
There is no discussion or explanation of the grounds for their disagreement, the legal or other objections to the High Court judgement, or even a perfunctory analysis of it – just a blanket, summary dismissal. Following this, in the Gambhirdan K Gadhvi vs The State of Gujarat case, the Supreme Court bench of Justices BV Nagarathna and MR Shah reiterated the same position without going into any legal explanations or detail.
Close on the heels of these two Supreme Court judgements followed several other judgements of both the Supreme Court and High Courts, effectively establishing them as the law of the land.
The net result of these verdicts is that, on the strength of the UGC Regulations, the Governor-Chancellor has effectively become the sole authority in the appointments of Vice Chancellors, without any need to seek the advice of the state government – even though the Governor is constitutionally bound to act "on the advice of his Council of Ministers" – or any regard for laws enacted by the state legislature.
In Kerala, it resulted in the Chancellor initiating steps to dismiss several Vice-Chancellors, not on grounds of quality or qualifications, but merely on the ground that their appointments did not adhere to the strict letter of the UGC Regulations. Even further, in all the vacancies that have so arisen, the Governor-Chancellor has proceeded to appoint "in-charge Vice-Chancellors," without even a semblance of due process or procedure, or in accordance with university statutes, but merely based on what can only be called his political and subjective satisfaction.
The state, in its turn, has been reduced to a helpless spectator with no say in the governance of universities, which they would like to mould in ways that would best serve the aspirations of the people of the state and for which they provide funding. In the same vein, the laws enacted by the state legislature, as an expression of the will of the people, have become even more worthless than the paper on which they are printed.
The present intervention of the Supreme Court turns a blind eye to these fundamental issues, which to a great extent, are a result of their own rather short-sighted verdicts. The attempts to come up with an ad hoc solution may appear to be justifiable judicial activism, aimed at the best interests of universities and students, but in reality, they will only serve to perpetuate the problem.
A great irony of the decision is that the Court has completely disregarded the UGC Regulations, the very same regulations that it had earlier insisted should be adhered to at all costs, and which, in retrospect, are at the root of all the present problems. In its earlier constitution of the Search Committee, which did not include a nominee of the UGC, and now in its instruction that the Search Committee should submit a panel with one candidate recommended as the most suitable person and the others ranked in the order of their merit, the Court has pointedly ignored the UGC and its regulations.
Without doubt, the Court can ignore or put aside any law in its exercise of Article 142. However, there is something rather illuminating about this choice to ignore the UGC Regulations.
One of the most laughable conditions of the UGC Regulations is that the Search cum Selection Committee, consisting of experts in the field, cannot recommend the name of one single person as the most suitable person or a list in order of quality and merit but should submit a list in alphabetical order with no preference or priority indicated. The Governor-Chancellor should then choose one person from the list, exercising his considered judgement.
The real contradiction here is that the Constitution does not stipulate any education whatsoever, let alone any higher qualifications, but only an age of thirty-five years as eligibility to be Governor. And it is this person, who by rule need not have any background in education whatsoever, who is expected to exercise his judgement in selecting the Vice Chancellor.
It is pertinent to point out here that, following the Supreme Court judgements, the Vice Chancellor of Sree Sankaracharya University of Sanskrit* in Kerala was ousted from his position by the Chancellor, who had appointed him in the first instance, because, in accordance with the University's Statutes, his was the only name recommended by the Selection Committee as the most suitable person.
Now, I don't suppose that there will be any argument that the Lordships of the Supreme Court are highly qualified and erudite scholars by virtue of their long years of distinguished service at the bar. And there will be no argument that they are more than capable of studying a list of candidates and arriving at an impartial decision on who is the best among them.
However, when they themselves forgo that claim of erudition and ask the Committee of experts in the field of higher education to provide them with a ranked list, it may be worthwhile for them to also ask themselves whether the entrusting of the responsibility of final selection to a Chancellor, who by rule need not even be educated, makes sense.
There is a principle that the Supreme Court has reiterated time and again, that evaluation and judgement are best left to experts in the particular field, which, in this instance, the honourable lordships have adhered to. One can only hope that the Court will extend that logic further and question whether the UGC has been fair in entrusting judgement to an office and a person who need not have any expertise in any field, let alone in higher education. It could be a great opportunity for the Court to actually see the built-in arbitrariness of the UGC Regulations and reconsider its approval, taking into consideration the same principle.
Even more ironic is the Supreme Court's reluctance to acknowledge that the office of the Governor-Chancellor is playing a role that is as political as, or even more political than, that of the state government. At least, for whatever it is worth, the state government can claim that it represents the mandate of the people of the state, but what about the Governor, who is not only unelected but also a nominee of political parties that do not enjoy the confidence of the people of the state?
It is here that the Court will have to acknowledge, however difficult it may be, that far from the constitutional role of mediator and impartial head of government, the office of the Governor has systematically been reduced to the role of being the agent of the Union government, entrusted with the function of carrying out the ideological and political agendas of the ruling party at the Union, in states where it does not have the democratic mandate.
Unless the Supreme Court is ready to overcome its blindness and address these fundamental political and constitutional issues, it can resort to the use of Article 142 till the cows come home, but the problems shall continue, even aggravate, especially with a Union government hell-bent on imposing its will on states through the agency of the Governor. Undoubtedly, the losers will be the universities, the students and ultimately the country.
*The author was the Vice-Chancellor of Sree Sankaracharya University of Sanskrit when he was ousted by former Kerala Governor Arif Mohammed Khan. The matter is presently in court.
Mundoli Narayanan was formerly Professor of English at the University of Calicut. Views expressed here are the author’s own.