Liberating the University

IN AN EXTRAORDINARY order, the Supreme Court exercised its powers under Article 142 to grant assent to several Bills pending before Tamil Nadu Governor RN Ravi, ruling his actions to be in violation of the provisions of Article 200 of the Constitution. The president has since made a reference under Article 143(1), posing several questions arising from the verdict for the court's opinion. The verdict may have satisfied some champions of state autonomy, but it may well be argued that the Supreme Court has let slip a historic opportunity to liberate India's higher education from political interference.

The genesis of the conflict was the governor's insistence on fol­lowing UGC Regulations on selection of vice chancellors at state universities. What is common to the impugned Bills is empower­ment of the state government to appoint the vice chancellor or to confer it with controls over university administration. Moreover, in the case of Madras University, it did away with the role of the gov­ernor as chancellor of the university. The issues have wider rami­fication because there are similar provisions introduced through similar amendments over the years, in the university Acts in the states of Karnataka, Gujarat, and Telangana where the chancellor is appointed by the state government; and in a more recent case of West Bengal, the governor is proposed to be replaced as chancellor by the chief minister in as many as 31 state public universities—this last matter is reportedly sub judice before the Supreme Court.

The legal discourse limited itself to the role of the governor ver­sus that of the elected government under Article 200. Even though there were submissions articulated by the attorney general for India about the concern for quality and standards of universities, which had influenced the governor in what he did, those issues were treat­ed peripheral to the prayers and hence did not find any mention in the elaborate set of issues framed by the Supreme Court.

The judgment is an extensive treatise on the evolution of the text of Article 200 and judicial interpretations thereto over time, interpreting limits to gubernatorial discretion. It pointed out where the governor had erred by not following one of the three mutually exclusive options available to him in the first instance itself, and by wrongly reserving the Bills for the consideration of the president after having exhausted that option by returning the Bill to the legislature earlier. These are all, without doubt, issues of great significance in our constitutional scheme of things for the autonomy of states and primacy of legislatures; yet what is unfortunate is that not a single reference was made to the question of autonomy of universities.

The cause of university education was, in effect, left orphaned; and in that sense, the Supreme Court missed a historic opportunity to deliver complete justice—missing the woods of university au­tonomy for the trees of gubernatorial discretion. Here was a historic opportunity for the apex court to delve deeper into connected issues of university autonomy, selection of vice chancellors, and implica­tions of outside interference with university governance for the standards of higher education.

Instead, it merely confined itself to the technicalities and theo­retical nuances of the primacy of the elected legislature over nomi­nated, unelected governors. In the normal course, courts would limit themselves to deciding on issues brought before them for adjudication. However, this matter was not before just any other court; it was before the Supreme Court. And Article 142 gives the apex court extraordinary powers to make such order as necessary for doing "complete justice" in any matter before it.

If there was one matter in which complete justice would entail liberating universities from outside interference, it was this. There­fore, it is not unreasonable to start a debate on the implications of the judgment on the governance of universities, with the consequent impact on the closely linked issues of quality and standards of aca­demics and research in the university system.

One need not go in to the question of the gubernatorial conduct or the question whether governors ought to be involved as chancel­lors in universities. The argument of political persuasions influenc­ing governors to act in the manner they do may be possible. The argument of the governor, in the role of chancellor, bringing in a personalised element, may be plausible. That is why the Sarkaria Commission on Centre-state relations (1983-88) was in favour of the governor's role as chancellor being confined to what state laws defined. And, the MM Punchhi Commission on Centre-state rela­tions (2007-10) had recommended avoiding governors to function as chancellors in order to preserve the dignity of their office. Then there are arguments that often governors lack academic qualifi­cations or experience to guide universities and yet wield substan­tial powers without accountability. For all these reasons, moving towards a regime of non-involvement of governors in selection of vice chancellors may have its advantages.

However, the counterfactual of state governments stepping in to the selection of vice chancellors has equal, if not many more, dangers. While amendments of state laws disempowering the gov­ernor are not legislative overreach, the danger lies in the executive overreach while operationalising such legislation. Where the pow­ers to appoint vice chancellors of state universities are taken over by the state government, rarely can the selection or short-listing of candidates be outside the pale of political priorities and influences.

The 'pith and substance' to borrow a constitutional doctrine, of all proposals to amend Acts of state universities lie in acquir­ing ownership of the power to influence the appointment of vice chancellors. In theory, the role of the vice chancellor is fourfold: first, the ability to resist external controls and to insulate the uni­versity from those threats; second, the ability to ensure democratic internal systems in administration; third, the ability to promote and protect academic freedoms; and finally, the ability to possess a vision for all these.

In practice, a pliable vice chancellor is always in demand. One of the reasons is the over-centralisation of powers in universities with the post of vice chancellors, which ought to be rectified through appropriate amendments, thus reducing 'incentives' for pushing and lobbying for selection as vice chancellors. Another reason is the explosive growth in public expenditure on higher education in recent years which has translated to huge capital expenditure, involving lucrative civil contracts and purchases. A study (2020) of the trends in expenditure on higher education in India by the Centre for Economic and Social Studies, Hyderabad, showed that the expenditure, in current prices, on higher educa­tion (comprising of university education and technical educa­tion) was ₹30,890 crore in 2005-06; ₹97,736.70 crore in 2010-11; ₹1,69,636 crore in 2015-16; and had risen some seven years ago to ₹2,47,217.70 crore, in 2017-18.

Anecdotal evidence should clarify. In one state, a fine 'workable' arrangement had been allegedly arrived at through a compromise between an 'accommodating' governor and a 'mature and seasoned' chief minister. Apparently, universities were 'shared'—so that one would not come in the way of the other in matters of selection of vice chancellors. There is folklore about modes of payments for ap­pointments—payments in full and in advance, or down payments followed by periodic instalments during the tenure, or payments vouched by 'third-party' guarantors, that is, contractors and build­ers, equipment suppliers and vendors, and so on.

In another state, an academic of distinction, who was in no posi­tion to offer the 'price', was given the latitude that he would not have to make any 'down payment', which ran into crores of rupees, as he happened to be a priest; instead, his appointment would be on condition that the building contracts within campus would have to be given to building contractors of choice indicated by the powers-that-be in the state government. Of course, the priest refused.

In another instance, a 'willing' and 'resourceful' academic al­legedly struck a deal for being appointed as vice chancellor. After the 'down payment' was made and appointment orders had been issued, unfortunately for the aspirant, some past misdeed of his in an earlier organisation surfaced and he was not granted the neces­sary clearance from the 'vigilance' angle; he could not take up the offer of appointment and lost the 'down payment'.

In yet another instance, an academic of unimpeachable integ­rity was short-listed in a panel of names under consideration for appointment as vice chancellor. Soon thereafter he started receiving threatening calls asking him to cite personal difficulties to not be considered. This was followed by hired goons attacking his resi­dence, which he providentially escaped by posing as a gardener thanks to his wife's exemplary presence of mind.

THE COURT COULD not have ignored the question of university autonomy, particularly with regard to the selec­tion of vice chancellor, which was the bone of contention in the Tamil Nadu matter. The University Education Commission (1948) under Sarvepalli Radhakrishnan had suggested selection of the vice chancellor by the chancellor on "the positive recommen­dation of one name" by the Syndicate; because "it is really a part of a university's duty to learn how to choose its own vice-chancellor wisely and that, therefore, to deprive it of this duty would be a coun­sel of despair". In the commission's scheme of things, even the chan­cellor could not initiate the appointment himself. Thereafter, the Kothari Commission (1964-66) wanted vice chancellors to possess vision, commitment to university values, academic leadership, ad­ministrative ability, and high moral stature. The PB Gajendragadkar Committee (1969-70) had proposed, optionally, a nominee of the chairperson of the University Grants Commission (UGC) as a mem­ber of the Search Committee for vice chancellors. It is unlikely that a committee led by a former chief justice of India (CJI) would not have examined the nuances of autonomy of states vis-à-vis UGC's role. The Gnanam Committee (1990) had recommended vice chancel­lors to be academics of distinction, with tenure not at the pleasure of the chancellor or government. The Ramlal Parikh Committee (1993) had prescribed that a vice chancellor must have an "ability to provide leadership by his academic worth, administrative compe­tence and moral stature". The Yash Pal Committee (2010) said that choosing persons for such high-level appointments was "becom­ing scandalous in several states involving political and financial considerations at the cost of qualifications and competence". A leg­islative proposal, prepared for introduction in Rajya Sabha, named 'The Higher Education and Research Bill, 2011 (Bill No. LX of 2011)', proposed setting up a National Commission for Higher Education and Research, which was expected to maintain a "directory of aca­demics suitable for leadership positions for appointment as Vice Chancellor". UGC Regulations, 2018 mandate that only a person of the highest level of competence, integrity, morals, and institutional commitment is to be selected as vice chancellor through a transpar­ent process by a Search-cum-Selection Committee with a nominee of Chairman UGC as one of the members.

More recently, the National Education Policy 2020 (NEP 2020) identifies "suboptimal governance and leadership of HEIs" as one of our weaknesses, and calls for the "presence of outstanding and enthusiastic institutional leaders that cultivate excellence and innovation", and calls for such leaders to be selected by the Board of Governors of Higher Educational Institutions "through a rigorous, impartial, merit-based, and competency-based process led by an Eminent Expert Committee (EEC) constituted by the BoG."

Universities have a bounden duty to promote, encourage and facilitate a free spirit of inquiry, independence of thinking, and intel­lectual freedom uninhibited by the domination of any political or ideological persuasion. An autonomously functioning university, free from governmental interference, is therefore no less critical in a democracy than a fair and independent judiciary doing justice without fear or favour of executive interference.

A democracy can stay robust, only if the public theatre of human values—our universities—remain autonomous and free to enable young minds to analyse and choose for themselves from among the competing steams of thought and knowledge, in an ambiance un­influenced by biases in society. Citizens can expect the judiciary to appreciate that free universities are equally the pillars of democracy.

Good governance of universities is vital for them to contribute to society. Literature on higher education supports the view that accountability, autonomy, academic freedom, transparency and responsibility are the key measures of good governance of univer­sities. And each of these key measures would amount to nothing in the absence of good leaders. Only a good leader can attract good faculty and students, and ensure gainful utilisation of public re­sources without 'leakages'. Only a good leader contributes to quality and standards and, therefore, any argument that vice chancellors, being 'officers' of the university, are beyond the pale of regulation of national standards is an untenable technical argument.

Obviously, university autonomy cannot be unbridled. However, through checks and balances ensured by the democratic nature of university bodies, no university would engage in any recklessness that brings down its prestige among peer institutions. Also, it is far-fetched to assume that any corporate body cre­ated by the legislature would indulge in misadventure as nothing would pre­vent the legislature, which created the university, to step in and take corrective measures through the legislative route. That would be the right approach rather than allowing governments to control.

The question of university auton­omy is not a binary of Centre versus states. Nothing prevents state universities from operating at stan­dards far higher than those nationally prescribed. On the ques­tion of the rationale behind coordination of standards of higher education being vested in Parliament, BR Ambedkar's reply to the debates in the Constituent Assembly (August 1949) is relevant: "[I] t is absolutely essential both in the interest of the Centre as well as in the interests of the Province that the standards ought to be maintained on an all-India basis… in view of the fact that there are many provinces who are in a hurry to establish research institutes or establish university… likely to lower their standards in order to give the impression to the world at large that they are producing much better results than they did before…" (Constituent Assem­bly Debates 9.128.105)

The Tamil Nadu matter gave an opportunity to the court to test whether a regulation under a Central law on standards of university education, which ran counter to state laws, could adversely impact the autonomy of states and the basic structure of federalism. And, if indeed a subordinate legislation of a Central law was incompetent to regulate states, here was an opportunity for the court to step in and do complete justice for ensuring standards of university edu­cation till such time as Parliament filled the vacuum by enacting a Central law to that effect, under Entry 25 of the Concurrent List.

In confining itself to the limits of gubernatorial action under Article 200 of the Constitution, the court also missed an opportu­nity to test whether legislative proposals pertaining to universi­ties ought to have been considered on a different footing because of the inherent conflict of interest that affects the role of the gov­ernor as chancellor under the relevant Act. Should the governor, being himself an interested party, be deciding on either his assent or dissent; or ought he to reflexively reserve such proposals for the consideration of the president?

The West Bengal matter gives the court yet another opportunity to do complete justice expected of it by protecting the concept of university autonomy; and it may like to bear in mind what an emi­nent educationist, HG Papworth, in his submission to the Univer­sity Education Commission (1948) cautioned, and which is as valid today as it was then—that ensuring universities are freed from all non-academic influence, authority and power, would require "great courage, self-sacrifice and self-denial, for many vested interests will have to be liquidated."